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

[2024] FWC 1668

[2024] FWC 1668

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, Uas Pacific Pty Ltd

(AB2023/666)

(AB2024/20)

DEPUTY PRESIDENT LAKE BRISBANE, 25 JUNE 2024

Application for an FWC order to stop bullying – no risk of future harm since undertakings – application dismissed.

1. An ex tempore decision has been issued as follows.

1. Upon the evidence presented before me today, it is clear that the Commission cannot be satisfied that there is a risk that the worker will continue to be bullied at work by the Persons Named under s.789FF of the Fair Work Act 2009 (the Act).

1. Mr Geoffrey Barker raises the matter of Bowker et al v DP World [2015] FWC 7312. It is necessary to establish that the bullying behaviour should be identifiable by some description.

“[14] Before turning to those findings, it is necessary to say something of the ‘group of individuals’ that engaged in Bullying Behaviour. It seems to me necessary that I am able to identify, by some description, the individual or group of individuals, whether known or unknown, who engaged or participated in the Bullying Behaviour…”

1. Mr Lewis, Mr Duffy and Mr Hickson made undertakings from February 2024 that they would not interact with the Applicants. Mr Barker has acknowledged on record that Persons Named had not breached their undertakings from this date. Therefore, there is no real risk that the Applicants will continue to be bullied at work under s.789FF(1)(b) of the Act.

1. Furthermore, there is no identifiable risk to health and safety under s.789FD(b) of the Act. A risk to health and safety means the possibility of danger to health and safety and is not confined to actual danger to health and safety. The ordinary meaning of ‘risk’ is exposure to the chance of injury or loss. The risk must be real and not simply conceptual as stated in Re Ms SB [2014] FWC 2104.

1. The bullying behaviour must create the risk to health and safety. There must be a causal link between the behaviour and the risk. Cases on causation in other contexts suggest that the behaviour does not have to be the only cause of the risk, if it was a substantial cause of the risk viewed in a common sense and practical way.

1. The instances of past bullying behaviour allegations may raise concerns with the Applicants. However, this is conceptual and speculative at this stage. Unless the undertakings were not complied with, and there was evidence to establish this, the Applicants have no basis of making this application.

1. Section 587 notes the following:

“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.

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 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. It is appropriate to dismiss the applications under s.587 as there is no reasonable prospects of success. It does not preclude the Applicants from lodging a future application. However, the allegations must be properly identifiable and substantiated.

DEPUTY PRESIDENT

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