Branden Deysel v Easy Living Services Pty Limited & Robert Pizzie & Gregory Kyriacou

[2024] FWC 2953

[2024] FWC 2953

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009

s.789FC - Application for an order to stop bullying

Branden Deysel
v

Easy Living Services Pty Limited & Robert Pizzie & Gregory Kyriacou

(AB2024/466)

COMMISSIONER CRAWFORD SYDNEY, 24 OCTOBER 2024

Application for order to stop bullying – worker refusing to sign employment contract – no reasonable prospects of success - application for orders to stop bullying dismissed.

Background

1. On 20 June 2024, Branden Deysel filed an application for an order to stop bullying with the Fair Work Commission (Commission) pursuant to s.789FC of the Fair Work Act 2009 (FW Act). Mr Deysel’s application identifies his employer as Easy Living Home Elevator Pty. Ltd. (ELHE) and alleges he was bullied by Robert Pizzie (CEO) and Gregory Kyriacou (Supervisor). Mr Deysel attached a document to his application that contained further details about the relevant events. 

1. On 2 August 2024, Easy Living Services Pty Limited (ELS) filed a Form F73 response to Mr Deysel’s application. The response raised a jurisdictional objection to the application on the ground that the alleged bullying constituted reasonable management action and sought that the application be dismissed.

1. I conduct a conciliation conference to try and resolve Mr Deysel’s dispute on 20 August 2024. No resolution was reached.

1. On 21 August 2024, I issued directions for the filing of material and listed a hearing regarding ELS’ jurisdictional objection and the merits of Mr Deysel’s application for 9 October 2024 via video.

1. Mr Deysel did not file any material in accordance with the directions and did not seek an extension of time from the Commission. An email was sent to Mr Deysel from my chambers on 20 September 2024 requesting confirmation of whether Mr Deysel wished to proceed with his application. Mr Deysel did not respond to this email.

1. On 24 September 2024, a further email was sent by my chambers indicating my provisional view was that Mr Deysel’s application should be dismissed because it has no reasonable prospects of success given Mr Deysel has not filed any material in support of his application. The email provided Mr Deysel with an opportunity to respond to my provisional view by 5:00pm on 27 September 2024. Mr Deysel did not provide any material by this date.

1. On 2 October 2024, Mr Deysel sent an email to my chambers. Mr Deysel apologised for not filing any evidence and stated he has been seeing a counsellor. Mr Deysel indicated that there was still time for him to file material ahead of the conciliation conference on 9 October 2024. Contrary to Mr Deysel’s email, the matter was listed for hearing not conciliation on 9 October 2024.

1. Later in the day on 2 October 2024, an email was sent from my chambers to the parties indicating the hearing would proceed on 9 October 2024 but would be confined to the issue of whether Mr Deysel’s application should be dismissed. The email indicated Mr Deysel could file material ahead of the hearing and that I would hear any objections to the late material being admitted at the beginning of the hearing on 9 October 2024.

1. At 9:12am on 9 October 2024, Mr Deysel sent an email to my chambers requesting that the “meeting” that was due to start at 10:00am be postponed for two weeks so that he could seek further assistance from a counsellor.

1. An email was then sent from my chambers to the parties indicating I had decided to vacate the hearing and determine whether Mr Deysel’s application should be dismissed on the papers. I directed Mr Deysel to file any further material he wished to rely upon by 5:00pm on 23 October 2024.

1. Mr Deysel provided further material in support of his application on 11 October 2024. This constituted an updated version of the document Mr Deysel had attached to his application, screen shots of emails between Mr Deysel and Mr Kyriacou, and excerpts from the FW Act, the Work Health and Safety Act 2011 (Cth) and the Crimes Act 1900 (NSW).

Statutory provisions and authorities

1. Section 587 of the FW Act states:

“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.

Note:  For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division   5 of Part   3 - 2, see section   399A.

(2)  Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section   365 or 773, or an application under section   527F that does not consist solely of an application for a stop sexual harassment order, on the ground that the application: 

(a)  is frivolous or vexatious; or
(b)  has no reasonable prospects of success.

(3)  The FWC may dismiss an application:

(a)  on its own initiative; or

(b)  on application.”

1. The power to dismiss a substantive application should only be exercised cautiously and sparingly because it results in the complete extinguishment of an applicant’s right to have their application heard and determined according to the law before they have had their “day in court” (per John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station [2019] FWCFB 2925 at [31]).

Consideration

1. I am not satisfied on the material filed that there is any risk that Mr Deysel will continue to be bullied at work by Mr Pizzie or Mr Kyriacou. Mr Deysel has been absent from work since 20 June 2024. Mr Deysel has repeatedly stated he has mental health issues and has submitted a workers’ compensation claim. There is no evidence that Mr Deysel is likely to be fit to return to work in the foreseeable future.

1. Further, I do not consider there is currently any prospect of the “stalemate” between Mr Deysel and ESL being resolved and Mr Deysel returning to work for ESL. Mr Deysel is claiming his current employment with ESL is governed by a previous employment contract with ELHE for a different position. As a result of this argument, Mr Deysel has repeatedly refused to sign an employment contract with ESL. It is clear ESL does not accept Mr Deysel’s employment with them is governed by a contract with a different legal entity for a different position and that Mr Deysel will not be permitted to perform further work for ESL unless he signs a contract with ESL. I am not satisfied there is any prospect of either party moving on their positions based on the material before me.

1. Given there is no risk of further bullying, there is no jurisdiction to make an order to stop bullying under s.789FF of the FW Act.

1. Mr Deysel’s application is dismissed pursuant to s.587(1)(c) of the FW Act because it has no reasonable prospects of success.

COMMISSIONER

Matter determined on the papers.

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