Chad Allan Nowak v Mark Lewis, Scott Duffy, Warrick Hickson, Jonathan Hanton, Civil Aviation Safety Authority

[2024] FWC 1580

[2024] FWC 1580

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Geoffrey Brian Barker; Chad Allan Nowak
v

Mark Lewis, Scott Duffy, Warrick Hickson, Jonathan Hanton, Civil Aviation Safety Authority

(AB2023/666)
(AB2024/20)

DEPUTY PRESIDENT LAKE BRISBANE, 20 JUNE 2024

Application for an FWC order to stop bullying – interim or procedural – s. 589 – jurisdictional objection upheld – scope of hearing to be narrowed.

1. Mr Geoffrey Brian Barker and Mr Chad Allan Nowak (the Applicants) have made an application to the Fair Work Commission (the Commission) under s.789FC of the Fair Work Act 2009 (the Act). The Applicants allege that that they have been bullied at work by Mr Mark Lewis, Mr Scott Duffy, Mr Warrick Hickson, Mr Jonathan Hanton and the Civil Aviation Safety Authority (CASA).

1. The Applicants are employed by UAS Pacific Pty Ltd (UAS). UAS operates in the drone industry and provides services such as drone operator training, aerial photography and surveying and mapping. Drone operators are required to hold a licence issued by CASA. Mr Barker is the Managing Director of UAS. Mr Nowak has been an employee of UAS since January 2018.

1. The four Persons Named are officers of CASA. Their positions are as follows:

·   Mr Mark Lewis – Senior Inspector within the Remotely Piloted Aircraft Systems Operations Section (RPAS Operations), Regulatory Division of CASA;

·   Mr Scott Duffy – Manager, RPAS Operations;

·   Mr Warrick Hickson – Senior CASA Inspector;

·   Mr Jonathan Hanton – Industry Complaints Commissioner.

1. Pursuant to s.589 of the Act, I have made an interim decision regarding how the matter is to be dealt with. The first day of Hearing was listed on 18 June 2024. However, Mr Barker was unwell, and the matter was adjourned in consideration of his condition. There were a number of allegations raised. The Respondent provided submissions in support of dismissing the application under s.587 of the Act. This decision addresses the Respondent’s dismissal application and how the matter is to proceed for the two remaining hearing dates.

Representation

1. On 18 June 2024, I granted CASA and the Persons Named leave to be represented by Ms Kristi Riedel of Counsel under s.596 of the Act, on the basis that it would allow the matter to be dealt with more efficiently given the complexity and volume of issues raised by the Applicants. The Applicants objected to representation, arguing that they were not aware that the Respondents would be represented. They sought to adjourn the proceedings on this basis, in order to allow time to obtain legal representation of their own. The Respondent objected to the Hearing being adjourned on the basis that it would result in further delay.

1. The Applicants were given a significant period of time to seek representation and were aware of CASA being represented by Counsel from 23 February 2024. The Applicants had four months to seek representation. If the Applicants seek representation for the subsequent hearings listed on 25 June 2024 and 26 June 2024, this will be granted. However, the remaining hearing dates will not be adjourned while the Applicants seek representation.

Procedural history and the matters to be determined

1. Mr Nowak made an application under s.789FC on 5 May 2023, claiming that Mr Duffy and Mr Lewis had bullied him at work. Mr Barker, Mr Hickson and Mr Hanton were not parties to that application.

1. On 24 August 2023, CASA made an application for the Commission to dismiss Mr Nowak’s substantive application pursuant to s.587 of the Act as the application did not have reasonable prospects of success. To resolve the matter, Mr Lewis and Mr Duffy made undertakings to refrain from initiating any contact with Mr Nowak, not attend the premises of UAS while Mr Nowak remained employed with UAS, and not be involved in any licensing matter involving Mr Nowak. CASA also arranged for Mr Lewis and Mr Duffy to have emails blocked from and to Mr Nowak, Mr Barker and UAS.

1. CASA submitted that there was no risk of Mr Nowak being bullied in the future by Mr Duffy or Mr Lewis given the undertakings.

1. Mr Nowak’s application was allocated to Commissioner Hunt who held a hearing to determine CASA’s dismissal application. Whilst Mr Barker was not a party to Mr Nowak’s application, he appeared on behalf of UAS at the hearing. He has consistently remained supportive of Mr Nowak in his views that Mr Lewis and Mr Duffy have been engaging in bullying behaviour.

1. Commissioner Hunt determined the matter and issued a decision in [2023] FWC 2576.  Mr Duffy and Mr Lewis had agreed to have “no contact at all, or anything to do with Mr Nowak” and was to Mr Barker. Without making findings as to whether there was bullying, the Commissioner was satisfied that the undertakings would ensure that there was no risk that Mr Nowak would be bullied in the future by Mr Lewis and Mr Duffy.

1. Being satisfied that there was no risk of future bullying, the application was dismissed under s.587(1)(c) of the Act.

1. Mr Nowak and Mr Barker made a subsequent application, and the matter was allocated to me. I listed the matter for Hearing on 18 June 2024.

1. During the Hearing on 18 June 2024, the Applicants were seeking to rely on issues that had already been determined by Commissioner Hunt to establish bullying conduct. There is a significant volume of material submitted by the Applicants. It encompasses a wide range of issues, including the breakdown of the relationship between Mr Barker and Mr Duffy.

1. The issue before me is to establish whether there was bullying conduct and whether there was a risk that the worker will continue to be bullied at work by the individual or group under s.789FF of the Act.

1. The Respondent sought to dismiss Mr Barker and Mr Nowak’s applications, given that Mr Duffy and Mr Lewis have avoided and will continue to avoid interactions with Mr Nowak. This has extended to Mr Barker and his company UAS Pacific Pty Ltd. These undertakings have been accepted by Mr Hanton and Mr Hickson. As a result, the Commission could not be satisfied that there is a risk of Mr Barker or Mr Nowak continuing to be bullied and therefore there is no basis of making the Application.

1. The Respondent submitted that the Applicants did not provide any evidence to establish that the undertakings that were agreed to were breached. The Application before me was primarily triggered by the appointment of Mr Duffy into a more senior position at CASA.

1. I accept the Respondent’s submissions. However, the Applicants will be given the opportunity to present their argument with a narrowed scope. Although the Commission’s jurisdiction is wide in determining bullying matters, the Full Bench has made it clear that whether bullying occurs ‘at work’ will depend on all the circumstances, and it is appropriate that the jurisprudence develops on a case-by-case basis. It was clear in Bowker that the Anti-Bullying/Stop Order jurisdiction is intended to fill a gap of specific and uniform regulation of workplace bullying that does not hinge off the areas of law that already exist.[1] It is broad, but not a coverall for existing functions by other bodies.

1. The Commission will not make a decision or undertake a fact-finding exercise regarding administrative review decisions. This includes reviewing delayed approvals and licenses, reviewing enforcements, reviewing CASA and whether it has fully applied or complied with its legal obligations, reviewing sanctions, exonerating offences, and making speculative findings as to whether CASA will find the Applicants fit and proper people to hold licenses and privileges.

1. This is because the Commission does not review administrative decisions of other bodies and the Applicants have been informed about this on numerous occasions. The powers to review administrative decisions are conferred under the Administrative Decisions (Judicial Review) Act 1977 (Cth) or s.75(v) of the Australian Constitution.

1. The Commission will only assess the Persons Named and their interactions with the Applicants after the undertaking was made with Commissioner Hunt on 9 February 2024, and from those undertakings, determine whether Mr Barker or Mr Nowak will continue to be bullied at work. Mere speculation will not be accepted as bullying conduct. For the remainder of the two hearing dates, the Applicants are to particularise what the actual bullying conduct is since the undertaking was made. This will require evidence of actual decisions or behaviours post the February undertaking that meet the definition of bullying.

DEPUTY PRESIDENT

[1] Bowker and Others v DP World Melbourne Limited T/A DP World and Ors [2014] FWCFB 9227 at [36].

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