Applications by Hien, Le; Sankey, Joseph; Soy, Bora

[2019] FWC 4274

[2019] FWC 4274

FAIR WORK COMMISSION

DECISION

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

Applications by Hien, Le; Sankey, Joseph; Soy, Bora
(AB2019/139) (AB2019/140) (AB2019/141)

DEPUTY PRESIDENT SAMS SYDNEY, 19 JUNE 2019

Application for an FWC order to stop bullying – application for interim orders to prevent pending disciplinary action – disciplinary matters unrelated to alleged bullying – whether serious issue to be tried – balance of convenience – no evidence that applicants will be dismissed – management prerogative – balance of convenience favours employer – interim orders refused – further programming.

[1] Given the urgency of this application, my decision will obviously not be lengthy or complex. I have taken all the parties’ submissions into account, reviewed all of the material which has been filed in the matters to date, and reflected on the conferences with the parties. The decision was issued ex tempere on 14 June 2019 and is now edited and published as follows.

[2] This matter concerns joint applications for stop bullying orders filed on 19 March 2019 by Mr Hien Le, Mr Michael Sankey and Ms Bora Soy, pursuant to s 789FC of the Fair Work Act 2009 (the ‘Act’). The respondents to the applications are the St Vincent de Paul Society (the ‘Society’) and six of its Senior Managers, although the allegations of bullying seem largely directed towards Ms Sue Chillingworth – Metro Region Accommodation Manager of the Society - from the time she became the applicants’ Manager. The applicants are Senior Support Workers with lengthy periods of service ranging from 11-24 years. At the time the applications were lodged, the applicants were engaged at the Matthew Talbot Hostel in Woolloomooloo.

[3] Relevantly, the applications were lodged following show cause letters issued to each of the applicants in October 2018 about unrelated conduct issues. A Performance Improvement Plan had been put in place in respect to one of the applicants. The applicants have been represented at all relevant times by the Australian Municipal, Administrative, Clerical and Services Union (the ‘Union’).

[4] There have been several listings of these matters before the Commission. The applications came before me for conference on 1 April 2019. Mr Coluccio from the Union represented the applicants, and Ms P Thomson from the Australian Federation of Employers and Industries (‘AFEI’) represented the respondents. The purpose of that listing was for the Commission to consider an application, filed by the Union, in which it sought orders restraining the employer from imposing any disciplinary sanction on the applicants until the determination of their stop bullying applications. Mr R Coluccio contended that the disciplinary action proposed, and the process itself, were essential components of the bullying claims of the applicants.

[5] It is pertinent to observe that the applicants’ complaints of bullying had been the subject of an internal investigation in February/March 2019, which found no bullying could be substantiated. It is apparent that the investigation and disciplinary process were occurring concurrently, but it was strongly maintained by the Society that they were completely different and separate matters. On the other hand, the Union asserted that the employer’s bullying investigation was fundamentally flawed and wrong.

[6] As a holding position, at the conclusion of the 1 April 2019 conference, I issued the following recommendation (see Print 706441):

‘[1] An independent third party investigation be conducted into the bullying allegations raised by the three applicants, Mr Le, Mr Sankey and Ms Soy. Given the Commission has not been provided with a copy of the internal investigation report, and obviously has taken no evidence in these matters, this recommendation should, in no way be viewed as endorsing or otherwise accepting the report’s conclusions or the Union’s claim that the internal investigation must be flawed.

[2] No further steps shall be taken by the employer in respect to the disciplinary action already commenced or actions proposed to be taken against the applicants, until the report of the independent investigation has been considered and responded to by the employer.

[3] Liberty to apply at short notice is available to the parties in respect to any further informal, procedural or formal proceedings, including any request for the making of interim orders arising from the proceedings in that respect last Monday, 25 March 2019.’

[7] It is plain from the second recommendation that all disciplinary processes were suspended until an independent investigation could occur, after which the Society could consider and respond to the report. It did not mean that the disciplinary process was suspended until the applicants had another opportunity to challenge any findings in the report with which they disagreed.

[8] My recommendation was accepted by the Society, and an independent investigator was appointed. The Investigator’s report dealt only with the applicant’s allegations against Ms Chillingworth. This was criticised by the Union because it did not include an investigation into the bullying allegations against the six other respondents (including the Society itself). The report found no bullying of the applicants by Ms Chillingworth could be substantiated. Unhappy with this outcome, and having not been provided with a copy of the report, the matters were relisted on 12 June 2019, and an agreement was reached that the report would be provided on a confidential basis to the Union, with redacted versions provided to the applicants.

[9] However, at 2.57pm on 13 June 2019, the Union pressed for urgent orders effectively restraining the employer from taking any further steps in the disciplinary process, including termination of employment. These proposed orders were:

1. That the respondent be restrained from terminating the employment of the applicants for a period of three months to allow the matters to be heard by the Commission; or

2. In the alternative, that the respondent be restrained from terminating the employment of the applicant for a period of two weeks to allow the Commission further time to engage with this matter and express a view if it pleases; or

3. In the alternative, that the respondent be restrained from terminating the employment of the applicants indefinitely;

4. Ihe orders made by the Commission may be varied or revoked by application of any party to the Commission at short notice or by the Commission on its own initiative; and

5. Any other order the Commission sees fit.

[10] Much of Mr Coluccio’s submissions focused on the history of the matter prior to the two investigations. This is not the primary focus of the stop bullying jurisdiction of the Commission. The Commission’s powers to make orders are forward-looking – it is a power to consider whether there is a prospective risk of bullying. Two of the applicants remain at work, and apart from the claim of the disciplinary action itself being bullying, no further incidents - at least involving Ms Chillingworth - have recently been reported.

[11] The primary submission of Mr J Stanton (from AFEI, on behalf of the Society) was that there was no evidence from persons who are said to support the Union’s case and no evidence of the applicants’ financial circumstances (in the event they have to pursue unfair dismissal applications). He claimed the orders sought are oppressive and without any evidentiary basis to support them. Moreover, the Society had all times willingly attended and participated in Commission proceedings over a period of three months, and accepted recommendations of the Commission, particularly the recommendation of 1 April 2019.

Principles in respect to the grant of interim orders

[12] There is no doubt the Commission has the power to make interim orders in respect to stop bullying applications. Section 589(2) of the Act does not limit the Commission’s powers to particular classes of applications filed under the Act; see: Bayly [2017] FWC 1886 and Worker A, Worker B, Worker C, Worker D and Worker E v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and others listed in Schedule A[2016] FWC 5848.

[13] The principles to be applied in such circumstances are well established and are often referred to as the prima facie tests of whether firstly, there is a serious question to be tried, and secondly, whether the balance of convenience favours an order for interim relief. In Quinn v Overland [2010] FCA 799, Bromberg J set out at [45] and [46] the two main considerations as follows:

‘[45] In determining an application for interlocutory relief, the Court addresses two main inquiries. First, whether the applicant has made out a prima facie case in the sense that if the evidence remains as it is, there is a probability that at the trial of the action the applicant will be held entitled to relief. Second, whether the inconvenience or injury which the applicant would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the respondent would suffer if an injunction were granted: Australian Broadcasting Corp v O’Neill (2006) 227 CLR 57 at [65], [19].

[46] The requirement of a “prima facie case” does not mean that the applicant must show that it is more probable than not that the applicant will succeed at trial. It is sufficient that the applicant show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. How strong the probability needs to be depends upon the nature of the rights the applicant asserts and the practical consequences likely to flow from the order the applicant seeks. In that context there is no objection to the use of the phrase “serious question” to convey the strength of the probability: Australian Broadcasting Corp v O’Neill per Gummow and Hayne JJ at [65]-[72], Gleeson CJ and Crennan J agreeing at [19].’’

CONSIDERATION

[14] Without going to the detail of the allegations of misconduct and/or poor performance against the applicants, or whether the conduct is such as to warrant dismissal, in my view, such conduct is unconnected and unrelated to the nature of the bullying allegations against Ms Chillingworth, which have been now found by two investigations to be unsubstantiated. Whether such conduct, or any other conduct, is found by the Commission to constitute bullying for the purposes of the Act, is not relevant at this stage. I have heard no such case, nor issued any directions for a hearing. Relevant witnesses who the Union claims were not interviewed can, no doubt, be called in a full hearing.

[15] At this point, the question arises, however, if there is a serious issue to be tried, in circumstances where two bullying investigations have said there is not (albeit this is strongly disputed by the Union) and more importantly, for present purposes, whether the Commission should interfere in the employer’s prerogative to institute disciplinary proceedings which might result in dismissal, and for which the applicants will have recourse to other provisions of the Act to challenge the fairness of such dismissals. I have recently said that it is not acceptable to use the stop bullying jurisdiction of this Commission as a shield or ‘stalking horse’, to prevent, delay or deflect justifiable disciplinary outcomes, or to claim that the disciplinary outcomes themselves are repeated unreasonable behaviour, constituting bullying. It demeans and undermines the important work of the Act’s stop bullying provisions to prevent workplace bullying; see: Karki [2019] FWC 3147.

[16] I emphasise that even if the applicants are dismissed, there is no automatic rule that their stop bullying applications must be dismissed on the grounds of them having no prospects of success. So much is clear from the recent decision of Hampton C in Dr Ng [2019] FWC 3055.

[17] I understand the stress and anxiety of the applicants in the present circumstances which has been exacerbated, in my view, by the ‘on again off again’ disciplinary process which the Union has succeeded in deferring for many months. I also accept that the applicants have a genuinely held belief that they have been bullied at work. However, the Commission’s ultimate task is to determine whether the conduct alleged was reasonable management action taken in a reasonable manner. This is only established by an objective consideration of all the circumstances as to the actual state of unreasonableness, not an individual’s subjective perception of it. This would appear to have been a primary consideration in the independent investigator’s report.

[18] Putting aside the applicants’ rights under the Act to pursue unfair dismissal claims, should the end result of the disciplinary process be dismissal, I am satisfied that the orders sought by the Union are oppressive. They unreasonably intrude into management’s legitimate right to pursue disciplinary outcomes against employees. However, I stress that I make no comment on whether such action is fair or soundly based. That may (or may not) be a matter for another day. The proposed orders are far too broad and general. Importantly, they are not supported by any sound evidentiary foundation at this stage.

[19] From my knowledge of the matter so far, and the fact that there has been no outcome of the disciplinary investigations, I am not satisfied that the balance of convenience favours the applicants. It is unnecessary, therefore, to make a finding as to whether there is a serious issue to be tried.

[20] Accordingly, the application for interim orders is dismissed. The stop bullying applications will be listed for a directions hearing on Monday 24 June at 10am.

DEPUTY PRESIDENT

Appearances:

R Coluccio, Australian Municipal, Administrative, Clerical and Services Union, for the applicants.

J Stanton, Australian Federation of Employers and Industries, for the Society.

Hearing details:

2019.

Sydney (via telephone),

14 June.

Printed by authority of the Commonwealth Government Printer

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