Bradley Hooley
[2019] FWC 5223
•31 JULY 2019
| [2019] FWC 5223 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Bradley Hooley
(AB2019/339)
COMMISSIONER HAMPTON | ADELAIDE, 31 JULY 2019 |
Application for an FWC order to stop bullying – whether no reasonable prospects of success given dismissal – unfair dismissal application apparently statute barred and effectively abandoned – no other basis for applicant worker to be in the relevant workplace – no future risk of relevant bullying conduct - no reasonable prospects that precondition to make an order will exist – application dismissed.
1. What this decision is about
[1] On 25 June 2019, Mr Bradley Hooley (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 preliminary conference by telephone before this arm of the Commission on 23 July 2019. Despite proper notice of the conference to all parties, there was no participation by Mr Hooley or anyone on his behalf and the Commission was unable to make contact via his mobile telephone.
[3] It was apparent from the application that Mr Hooley had been terminated from his employment on 21 June 2019 during what was described as his probationary period.
[4] In addition to this application, on the same day, Mr Hooley made application to the Commission for an unfair dismissal remedy. 1 I observe that the stop-bullying and unfair dismissal applications largely raise the same matters and seek similar outcomes. In relation to the unfair dismissal application, Mr Hooley was advised by the staff of the Commission that a potential jurisdictional barrier to proceeding may exist in that he may be ‘an employee who has not completed the minimum employment period’ with his employer.2 It appears from the Commission records that no further action has been taken by Mr Hooley or anyone on his behalf in relation to the unfair dismissal application having been advised of the jurisdictional issue. Further, another arm of the Commission is presently considering whether the unfair dismissal application should itself be dismissed on that basis and has invited Mr Hooley to make submissions about that matter.3
[5] The Applicant’s former employer, Cuscal Ltd, participated in the preliminary conference in this matter and made a verbal application 4 to have the stop-bullying application dismissed on the basis of two jurisdictional issues that were earlier outlined in the employer’s response to the stop-bullying application; namely, that:
• Mr Hooley 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).
[6] For reasons that will become clear, in this decision I have only dealt with the no future risk jurisdictional issue.
[7] I observe that on 5 July 2019, prior to the preliminary conference, Mr Hooley was contacted by the Commission at which time he advised that he wished to continue with his stop-bullying application notwithstanding the termination of his employment and the issues foreshadowed in the employer’s response.
[8] Following the conference, on 23 July 2019, correspondence from the Commission was sent to the Applicant (and the other parties) setting out the events to date, the apparent legal and factual basis of the no future risk jurisdictional issue, and some information resources about the matter. Directions were also issued requiring Mr Hooley to provide the following by close of business, Friday 26 July 2019:
1. Confirmation as to whether he objects to the dismissal of the stop-bullying application on the basis that there is no future risk; and
2. If there was an objection, a submission setting out the grounds upon which it was contended that the Commission could continue to deal with the application.
[9] Further, Mr Hooley was advised that should he fail to respond to the correspondence, his matter would be determined on the existing information and materials without further notice or hearing.
[10] As at the date of this decision, neither Mr Hooley, nor anyone on his behalf, has provided any response to the Commission. As a result, I have dealt with this matter based upon the information and materials now before the Commission.
2. The no future risk issue as applied to this matter
[11] The Commission is empowered under s.587(1)(c) of the Act to dismiss an application where it has no reasonable prospects of success. 5
[12] It is common ground that Mr Hooley’s employment had been terminated prior to lodging his stop-bullying application.
[13] 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.”
[14] In Obatoki,6 the Full Bench was dealing with an appeal where the applicant worker was no longer in the relevant employment relationship and the stop-bullying application had been dismissed by the Commission at first instance. 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] I note that in Obatoki, there is no indication that the appellant (the applicant in the original matter) had made an unfair dismissal application or that this was considered.7 In the earlier case of Shaw v ANZ,8 cited by the Full Bench in Obatoki, the applicant had made such an application and this did not, in that case, impact on the assessment of the reasonable prospects of success.9
[16] The general approach adopted in Obatoki was endorsed by a subsequent Full Bench in Atkinson v Killarney Properties Pty Ltd10 with what I consider to be an important caveat expressed in the following terms:
“[35] In this decision, we are not suggesting that it will always be appropriate for the FWC to dismiss a s.789FC application where an employee is dismissed from their employment. Depending on the circumstances in each case there may be a number of relevant considerations, including the prospect of reinstatement through other proceedings, which could warrant the FWC dealing with a s.789FC application notwithstanding the dismissal of the employee.”
[17] When considered in context, this caveat must potentially inform both the finding that there is no reasonable prospect of success and the exercise of any discretion that arises. Further, it emphasises that the dismissal of a stop-bullying application does not automatically follow the dismissal of an applicant worker from their employment and that the particular circumstances of each case must be considered in that regard.
[18] The import of s.789FF(1)(b)(ii) of the Act is that for a stop-bullying 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). 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 (for the applicant) to return to the workplace in some capacity as a worker.
[19] What all of this means is that the cessation of the employment or contractual relationship may provide a context in which the stop-bullying application has no reasonable prospects of success by virtue of the import of s.789FF(1)(b) of the Act. This is not a reflection upon the substantive merit (or otherwise) of that application (s.789FF(1)(b)(i)), but rather, consideration only of whether there is the absence of one of the (other) prerequisites for the making of any orders from such an application due to the fact that the applicant is no longer a worker at potential risk in the relevant workplace (s.789FF(1)(b)(ii)). However, in making that assessment the Commission must consider whether there is any other context in which the applicant might, as a worker, be subject to the risk of future workplace bullying conduct by the individuals concerned in the relevant workplace.
[20] Such a context could include where an applicant already has other work where they are likely to be involved in the relevant workplace in that capacity, or in my view, where there is some identifiable prospect that the applicant will return to the workplace as a worker as a result of some other intervention, such as a reinstatement order made by the Commission11 or by the Court.12 In that regard, this could well arise when an applicant had actually made a timely relevant application that appears to be within jurisdiction and was genuinely seeking that particular form of remedy. The prospect of these events occurring must certainly be something more than mere speculation; however, for reasons outlined above, the findings that there are no reasonable prospects of success is not a finding to be made lightly.
[21] Further, if there is a finding of no reasonable prospects, the dismissal of an application under s.587 of the Act remains a matter of discretion and each case must be considered on its merits.
[22] Accordingly, any attempts by an applicant worker to contest a dismissal or the cessation of the relationship are relevant; however in order to be more than speculation, the applicant would need to be genuinely and actively pursuing reinstatement as the remedy through some relevant and valid application that had been made. This is relevant to the finding as to whether, or not, there are no reasonable prospects of success. Further, the impact upon other parties, including the individuals named in the application and the employer/principal are also relevant considerations in the case management of a stop-bullying matter including any decision to dismiss it on the grounds raised here.13 These latter considerations, and the fact that an applicant can make a fresh stop-bullying application should circumstances change, are relevant to the discretion, but not to the assessment of whether there are no reasonable prospects of success present in the extant application.
[23] What is evident from the terms of the Act when applied in this case, is that the future risk must pertain to the likelihood of future unreasonable conduct that might be directed towards Mr Hooley in his capacity as a worker attending work along with the individual(s) 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.
[24] Mr Hooley 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 that the unfair dismissal application made by Mr Hooley remains incomplete and there is a substantive jurisdictional barrier to that application which arises directly from the face of his unfair dismissal application. There is also no evidence that Mr Hooley is now actively pursuing reinstatement through that application or through any other cause of action.
[25] Given that finding, it is not necessary to deal with the other jurisdictional issue arising from the Applicant’s status at the time of making the stop-bullying application.
3. Conclusion and order
[26] 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.”
[27] 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 in this matter has no reasonable prospects of success. I am also satisfied that as a matter of discretion it is appropriate in all of the circumstances to dismiss the application.
[28] Accordingly, the application is dismissed under s.587(1)(c) of the Act and I so order.
COMMISSIONER
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<PR710747>
1 Under s.394 of the Act - U2019/6927 25 June 2019.
2 Sections 382, 383 and 384 of the Act. The minimum employment period required would appear to be at least six months and the unfair dismissal application indicates that the period of employment was just over five months.
3 Notice was provided to Mr Hooley on 22 July 2019.
4 In the circumstances I waived compliance with the Fair Work Commission Rules 2013.
5 See how this concept was applied in a different context in Brian Clothier v Ngaanyatjarra Media[2012] FWAFB 6323 at [15].
6 Olusegun Victor Obatoki [2014] FWC 8828.
7 See also Olusegun Victor Obatoki [2014] FWC 8828.
8 [2014] FWC 3408.
9 Ibid at [8].
10 [2015] FWCFB 6503.
11 Section 391 of the FW Act.
12 Section 545(2)(c) of the FW Act, as an example.
13 See also Simon Ketenci v Commissioner for Public Employment and Others[2018] FWC 2299 and Joseph Salama v Sydney Trains and others[2018] FWC 1845 in this regard.
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