Chad Allan Nowak v Scott Duffy, Mark Lewis, Civil Aviation Safety Authority, UAS Pacific
[2023] FWC 2576
•5 OCTOBER 2023
| [2023] FWC 2576 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Chad Allan Nowak
v
Scott Duffy, Mark Lewis, Civil Aviation Safety Authority, UAS Pacific
(AB2023/157)
| COMMISSIONER HUNT | BRISBANE, 5 OCTOBER 2023 |
Application for an FWC order to stop bullying.
On 5 May 2023, Mr Chad Nowak made an application pursuant to s.789FC of the Fair Work Act 2009 (the Act) to the Fair Work Commission (the Commission) for an order to stop bullying.
Mr Nowak is employed UAS Pacific Pty Ltd (UAS). The brand UAS stands for Unmanned Autonomous Systems. UAS operates in the drone industry, including training individuals to become drone operators, alongside doing commercial work with drones. UAS also stands for unmanned aircraft systems, a more discreet and particular term for a drone for those of us not in the industry.
Mr Nowak has enjoyed flying and operating drones and similar aircraft for some years. He has won drone racing world championships. In around January 2018 he commenced working for UAS. He enjoys a very strong relationship with Mr Geoff Barker, Managing Director of UAS.
Mr Nowak is proud that his hobby has developed into a career where he trains others. He is required to be licensed by the Civil Aviation Safety Authority (CASA) and is subject to many laws and regulations where CASA is the regulator.
Persons Named
Mr Nowak considers that two CASA officers have bullied him at work and will continue to bully him unless an order of the Commission is made. The two officers, being Persons Named in this application are:
·Mr Mark Lewis, Senior Inspector, RPAS Operations within the Regulatory Oversight Division
·Mr Scott Duffy, Manager, RPAS Operations within the Regulatory Oversight Division
RPAS stands for Remotely Piloted Aircraft Systems. Mr Lewis reports to Mr Duffy.
Mr Lewis commenced with CASA in November 2016. Prior to joining CASA, he worked for UAS, reporting to Mr Barker.
Allegations of bullying
Mr Nowak is of the view that he has been repeatedly bullied by Mr Lewis, supported by and also bullied by Mr Duffy.
Mr Barker supports Mr Nowak in his views that Mr Lewis and Mr Duffy are bullying Mr Nowak in his work. Mr Barker also considers that Mr Lewis and Mr Duffy bully and harass him and his entity, UAS. Mr Barker has not made his own application.
Mr Barker has an acrimonious relationship with Mr Lewis and distrusts him. In oral evidence given by Mr Lewis, he does not consider that he has an acrimonious relationship with Mr Barker and says he has not had any need to speak to him for many years.
Matter programmed for hearing of substantive application
On 3 July 2023, I convened a telephone conference. Mr Nowak appeared, supported by Mr Barker. The following CASA personnel participated in the conference:
Anthony Carter, Branch Manager, Litigation, Investigations, Legal, Int’l & Reg Affairs
Tanya Canny, Special Counsel (Acting), Litigation, Investigations and Enforcement
Scott Duffy
Mark Lewis
There was no objection made by CASA that Mr Nowak is not at work when the matters raised by him in respect of the Persons Named occurred. CASA accepts that Mr Nowak’s concerns are in respect of him being at work and the CASA officers performing their regulatory functions.
The matter was not resolved to Mr Nowak’s satisfaction, and accordingly the matter was programmed, requiring parties to file material. A three-day hearing was listed for 16-18 October 2023.
Summary of bullying complaints
Mr Nowak has filed many freedom of information requests and been provided with information which he says supports his assertions that the Persons Named have bullied him.
He considers that the Persons Named have made his life hell, where they have engaged in bullying, intimidation and harassment. Some, but not all of the instances are detailed below.
In 2015, before Mr Nowak commenced employment with UAS, Mr Lewis stated to Mr Barker that Mr Nowak was lucky to have won the first world drone racing championships, and he did not think he was a very good pilot.
In July 2017, during the Drone Nationals competition, Mr Lewis approached Mr Nowak and informed him he was now working at CASA and was in the RPAS branch. Mr Nowak offered his assistance to improve communication between CASA, hobbyists and drone pilots. He asked Mr Lewis if he was on CASA’s “radar”. Mr Lewis stated that he was not. One month later Mr Lewis was tasked with investigating Mr Nowak.
YouTube videos
On 4 October 2017, a CASA RPAS Inspector became aware of two video clips on a YouTube site. One video was titled “Chicken Sandwich”; the other “Removing one’s self from the equation.” CASA determined that the videos depicted unmanned aircraft operations conducted in close proximity of people, not within visual line of sight, and in a hazardous manner.
CASA determined that while Mr Nowak did not make admissions that it was him operating the unmanned aircraft, based on the social media postings on his website, and without him attributing the footage to any other operator, he was the operator. In making its findings, CASA took into account his willingness to enter into a voluntary interview, his positive attitude and his willingness not to upload any similar content to his webpage.
On 13 June 2018, a counselling notice was issued by Mr Luke Gumley, Branch Manager RPAS (the 2018 Counselling Notice). Mr Nowak has not formally disputed the issuing of the 2018 Counselling Notice but remains upset by it having been issued to him.
Wyreema Aerodrome
In November 2019, CASA became aware of photographs which had been posted to a Facebook group. The aerodrome is an uncertified aerodrome and is on private property owned by an individual. The photographs showed the owner of the property and others piloting unmanned aircraft.
The owner was contacted by CASA and initially suggested CASA regulations do not apply as the land is privately owned. After seeking further advice, the owner accepted that CASA regulations do apply.
CASA determined that Mr Nowak was a Remotely Piloted Aircraft (RPA) instructor at all relevant times and determined that he was present at the aerodrome 17-18 October 2019, whilst employed by UAS and conducting training.
Mr Duffy issued a counselling notice to Mr Nowak on 12 May 2021 (the 2021 Counselling Notice).
Mr Nowak disputed the 2021 Counselling Notice. On 25 August 2021, Mr Craig Martin, Executive Manager, Regulatory Oversight Division withdrew the counselling notice. The relevant parts of the letter sent to Mr Nowak are detailed below:
“…Based on the information available to me, I am satisfied that you did not set out to deliberately breach the regulations and were instead operating under an honest misapprehension about the operation of the regulations.
I am also satisfied that you are now aware of the regulatory requirements applicable at Wyreema Aerodrome and I believe you will ensure any further operations at this aerodrome for which you are responsible are conducted appropriately.
My decision to withdraw the counselling notice does not infer that CASA erroneously issued the counselling notice. CASA’s interpretation of the relevant regulations was correct and the information available to CASA at the time was considered sufficient to support the issuance of the counselling notice. That decision did not take into account the further information you provided, which leads me to believe an educative approach is more appropriate than a compliance-based approach, such as counselling, on this occasion.
I consider this matter closed and will ensure that this letter, recording the formal withdrawal of the counselling notice, is placed on your personal record with CASA.”
Mr Nowak was dissatisfied with Mr Martin’s decision to provide an ‘educative approach’ to him and complained to CASA’s Industry Complaints Commissioner (ICC). That role is filled by Mr Jonathan Hanton. The ICC is not a statutory appointment; the appointment is made by the Board of CASA.
Commissioner Hanton wrote to Mr Nowak on 1 November 2021, noting Mr Nowak was disputing Mr Martin’s educational approach on the matter. Mr Nowak considered that the Wyreema Aerodrome is marked as an authorised landing area (ALA), not an aerodrome. Mr Nowak considered he had not breached any regulations. Further, Mr Nowak asserted that there weren’t any flying operations over any movement area or approach and departure paths.
Commissioner Hanton’s letter details that CASA does, indeed, consider that an ALA is an aerodrome, and provided references to regulations to confirm that view. Commissioner Hanton stated it was his preliminary view that the advice Mr Martin relied upon when conducting his review was correct, and CASA had not misled Mr Martin.
Commissioner Hanton further stated that his preliminary view was that the advice Mr Martin received in his decision to withdraw the counselling notice was not likely to have been misleading.
Mr Nowak was invited to provide to Commissioner Hanton any further material he wished to rely upon by 15 November 2021. The letter concluded:
“If at any stage you’re unhappy with my response you’re able to ask the Commonwealth Ombudsman to review the ICC’s review of your concerns.”
Contact details of the Commonwealth Ombudsman were provided.
Delay in obtaining license
Mr Nowak also considers that the Persons Named, and particularly Mr Duffy, unfairly took a very long time to approve various licences required by Mr Novak to work for UAS.
Facebook comment asserting CASA corruption
In March 2021, Mr Lewis was made aware of a Facebook comment made by Mr Nowak on a page for aircraft enthusiasts. Mr Nowak stated:
“…..add to that the already disgustingly deep corruption within the regulator and you have recipe for an absolute shitstorm….”
Mr Lewis forwarded the post to Mr Duffy.
DJI FPV event 2021
Mr Jeff Bethell is the UAV Sales Manager for C.R. Kennedy. He reported to Mr Barker in January 2023 that when he was launching an event in March 2021, he was speaking to ‘CASA’ about the event. He stated that defamatory remarks were made about Mr Nowak. He stated that Mr Lewis was negative towards UAS and Mr Nowak.
CASA’s application to dismiss
Noting the substantive matter was to be heard before me on 16-18 October 2023, on 24 August 2023, CASA made an application for the Commission to dismiss the substantive application pursuant to s.587(1)(c) of the Act on the grounds that the application does not have reasonable prospects of success.
CASA noted that the Commission may only make an order to stop bullying pursuant to s.789FF of the Act if the Commission is satisfied that:
(a) The worker has been bullied at work by an individual or a group of individuals; and
(b) There is a risk that the worker will continue to be bullied at work by the individual or group.
CASA noted that Mr Nowak is not an employee of CASA. His interactions with Mr Lewis and Mr Duffy while he is at work occur in the context of him being the holder of various remotely piloted aircraft systems and CASA being the regulatory body with oversight over such licenses.
In support of the application to dismiss, several people made witness statements as follows.
Witness statement of Mr Duffy
Mr Duffy denies that he has ever bullied Mr Nowak. He does not, however, want to have any involvement with Mr Nowak in the future. To facilitate that arrangement, he has offered to exclude himself from any involvement with Mr Nowak in any interactions he may have with CASA in the future. He stated that he agrees to the following:
·Not to instigate contact with Mr Nowak in any form, including by writing, telephone, video or in person;
·Not to attend the premises of UAS while Mr Nowak remains employed by UAS;
·Not to make or publish any adverse, disparaging or other comments about Mr Nowak that are intended to bring him into disrepute;
·Not to intentionally denigrate or humiliate Mr Nowak;
·Not to intentionally bully, intimidate or harass Mr Nowak;
·Refrain from making any written and/or oral statements that are abusive, offensive or disparaging regarding Mr Nowak;
·To not be involved with any RPAS investigation in respect of Mr Nowak;
·To not be involved in any licensing matter involving Mr Nowak;
·To not be involved in any enforcement action involving Mr Nowak;
·Mr William Tootell, Mr Duffy’s manager, will deal with all matters involving Mr Nowak, and will allocate as necessary, but not to him;
·From 19 October 2023, or earlier, will be blocked from sending or receiving emails to Mr Nowak, Mr Barker and UAS;
·Will not be able to access team emails;
·Will be restricted from accessing any files on CASA’s record management system involving Mr Nowak, Mr Barker and UAS.
Witness statement of Mr Lewis
Mr Lewis also denies that he has ever bullied Mr Lewis. He too does not wish to have any involvement with Mr Nowak in the future. Mr Lewis agrees to the same restrictions as Mr Duffy, listed above.
Witness statement of Mr William Tootell
Mr Tootell is the National Manager of the Regulatory Services Team #1 within the Regulatory Division of CASA. He leads and manages aerodromes, Entry Control and Coordination, Flight Testing Office, Human Performance, International Operations, Technical Operations and RPAS Operations.
Mr Tootell is aware of Mr Duffy and Mr Lewis’ offer to exclude themselves from any involvement with Mr Nowak in the future. Mr Tootell is agreeable and states that he will receive and respond to any information, correspondence or applications regarding Mr Nowak. Where necessary, he will reallocate the correspondence, information or any application concerning Mr Nowak to an appropriate member of the RPAS team, ensuring that neither Mr Duffy nor Mr Lewis are involved.
Mr Duffy will no longer have access to the RPAS team email, and Mr Lewis never did. Any matters involving Mr Nowak will be forwarded directly and exclusively to Mr Tootell. On 24 August 2023, an email to the team was sent informing them of Mr Tootell’s direction.
Mr Tootell supports Mr Duffy and Mr Lewis’ request to have emails blocked from and to Mr Nowak, Mr Barker and UAS.
Witness statement of Mr Michael Gazzard
Mr Gazzard is the Team Leader Service and Support within the ITB Branch Corporate Services Division of CASA.
Mr Duffy and Mr Lewis have each contacted him and requested he block certain email addresses from being able to send and receive emails from each of them. The request is effective from 19 October 2023, but can be implemented much earlier than that, if required.
Per Mr Duffy and Mr Lewis’ request, Mr Gazzard has also organised so that neither Mr Duffy nor Mr Lewis have access to the RPAS team email, and they are prevented from accessing the case management system in respect of Mr Nowak, Mr Barker and UAS.
Witness statement of Ms Tanya Canny
Ms Canny is Special Counsel (Acting) within the Litigation, Investigations and Enforcement Division of CASA.
On 16 August 2023, Ms Canny caused a Calderbank letter, a deed of settlement, release and undertaking in respect of Mr Duffy and Mr Lewis to be sent to Mr Nowak and Mr Barker. No response was received.
Ms Canny made a second witness statement where she detailed the types of communication CASA has with people and organisations it deals with. She explained that a counselling notice is at the lower end of the scale of seriousness.
The decision to issue a counselling notice is made pursuant to the CASA Coordinated Enforcement Process as provided for by the CASA Enforcement Manual. A counselling notice will typically be issued by CASA where:
(a) The recipient does not have a history of breaches or failures;
(b) The offence is of a less significant nature and has not resulted in serious safety consequences;
(c) It will be considered counselling is a sufficient deterrent to prevent recurrence of the non-compliant conduct.
Interlocutory hearing
On account of CASA’s application to dismiss, it became necessary to have a hearing to determine if Mr Nowak was at risk of future bullying given the undertakings and agreements Mr Duffy, Mr Lewis and CASA was prepared to make in respect of Mr Nowak.
On 27 September 2023, I held a hearing in-person. Mr Nowak represented himself. Mr Barker also appeared on behalf of UAS.
CASA, Mr Duffy and Mr Lewis were granted leave to be represented by Ms Kristi Riedel of Counsel, instructed by Ms Canny.
The following people gave evidence and were cross-examined:
Mr Nowak
Mr Barker
Mr Jeff Bethell
Commissioner Hanton
Mr Duffy
Mr Lewis
Mr Tootell
Mr Gazzard
Ms Canny
A number of revelations emerged during the hearing.
On account of the evidence given during the hearing, Commissioner Hanton was arranged at short notice by CASA to give evidence and be cross-examined.
It was discovered that the Commonwealth Ombudsman had ceased dealing with Mr Nowak’s complaint on account of the proceedings before this Commission, pursuant to s.6(2) of the Ombudsman Act 1976, reproduced below:
“6(2) Where a complainant has exercised, or exercises, a right to cause action to which his or her complaint relates to be reviewed by a court or by a tribunal constituted by or under an enactment, the Ombudsman shall not investigate, or continue to investigate, as the case may be, the action unless the Ombudsman is of the opinion that there are special reasons justifying the investigation of the action or the investigation of the action further.”
Evidence of Commissioner Hanton
At CASA’s request, Commissioner Hanton voluntarily gave evidence at short notice by telephone. The Commissioner stated that he had lobbied internally within CASA to see if there was any scope to change its position in informing Mr Nowak that his letter was educational.
The Commissioner noted that he had not responded to Mr Nowak in some time, since around May 2022, and that was an administrative deficiency on his part. Given Mr Nowak stated that he has further information he wishes for the Commissioner to consider, the Commissioner is prepared to consider that further information. It is noted that Mr Nowak did not provide to the Commissioner a particular statutory declaration from a witness he obtained in 2022, which was within his power to do so.
The Commissioner stated that he does not consider that he needs to liaise with Mr Duffy or Mr Lewis to conclude his investigation into Mr Nowak’s concerns.
Evidence of Bethell
Mr Bethell was called to give evidence by telephone at short notice, particularly given Mr Lewis denied ever having spoken to Mr Bethell, and denies discussing Mr Nowak as described by Mr Bethell at [35].
Mr Bethell gave evidence that he did not meet with Mr Lewis in person; rather, it was a telephone call made by him to Mr Lewis. When questioned as to how he could be sure it was actually Mr Lewis who telephoned him, and not a person purporting to be Mr Lewis, Mr Bethell stated that he did not feel comfortable giving evidence before the Commission. Having concluded all the questions I had for Mr Bethell, I excused him from giving any further evidence.
Mr Bethell had stated that he had googled Mr Lewis’ number and he had no reason not to believe it was him. He confirmed that he was the one who first referenced Mr Nowak’s name.
Evidence of Duffy
Having regard to the agreement Mr Duffy has made with CASA surrounding any future involvement with Mr Nowak, I questioned Mr Duffy as to his conduct in the event that a person approached him, for example, at an air show and wanted to discuss Mr Nowak with him. Mr Duffy stated that he would inform the person he could not discuss Mr Nowak and if they had any concerns, they should contact CASA directly.
If he heard any discussion regarding Mr Nowak in the lunchroom or in social settings, he stated that he would shut the conversation down.
Evidence of Lewis
Given the agreement Mr Lewis has made with CASA surrounding any future involvement with Mr Nowak, I needed to be satisfied that Mr Lewis could uphold the undertakings he has made.
Mr Lewis gave the same undertakings as Mr Duffy in respect of dealing with unsolicited requests to discuss Mr Nowak.
During the hearing there was considerable tension between Mr Nowak and Mr Lewis, but particularly between Mr Barker and Mr Lewis. As I have stated earlier, Mr Lewis gave evidence that he does not think about or hold any ill-will towards Mr Barker, yet it was evident that Mr Barker does not trust Mr Lewis.
Mr Barker questioned Mr Lewis in respect of investigations CASA undertook on Mr Barker and UAS soon after he left the employ of UAS and joined CASA as an inspector. I permitted the questions, not because it was necessary to determine if bullying had occurred in the past, but because I needed to satisfy myself that Mr Lewis was able to in 2023 and beyond, do the things he has undertaken to do, despite any potential ill-feelings towards Mr Nowak, Mr Barker and UAS.
In October 2016, just prior to joining CASA, Mr Lewis was required to declare a pre-employment conflict of interest. He noted that he had been employed by UAS, among other potential conflicts.
In considering whether Mr Lewis was suitable to be employed by CASA, Mr Duffy was liaising with Mr Joe Rule, position unknown regarding Mr Lewis’ conflicts. On 3 November 2016, Mr Duffy proposed the following to Mr Rule:
“This role has limited involvement with commercial operators, but I will limit any involvement with UAS Pacific for 12 months (since he left).”
Mr Rule replied to Mr Duffy’s email, noting that he agreed.
Mr Duffy wrote to Mr Lewis on 9 November 2016, relevantly noting that his restriction with respect to UAS is:
“Prior employment with UAS Pacific Pty Ltd
He will have limited exposure to UAS Pacific”
Mr Lewis replied by email that he accepted all conditions.
In a Conflict of Interest Declaration completed by Mr Lewis in November 2017, he answered no to the following question:
“Do you consider that any aspect of your employment history gives rise to an actual, potential, or perceived conflict of interest in relation to the performance of your duties as a CASA officer?”
In oral evidence, Mr Lewis considered that his restriction with respect to UAS was ‘limited involvement’. He considers that by January 2021, he was then directed to have no involvement with UAS. Mr Lewis’ Conflict of Interest Declaration was put before the Commission during the hearing. Mr Lewis made the following self-assessment in January 2021:
“Risk:UAS Pacific and Mr Geoffrey Barker – potential risk with both UAS Pacific is perceived COI due to previously employed by the company and was a close friend of company owner. This relationship dissolved in 2016. Likelihood is high, consequence is low.
Control:No direct contact with the company or company owner. No regulatory oversight, surveillance or involvement with BAU or enforcement matters concerning the individual Geoffrey Barker or UAS Pacific”.
Mr Duffy completed the Proposed Management Strategies of the form as follows:
“Person responsible for implementation: Scott Duffy
Strategy to be implemented: Mark will not participate in any reg-service, surveillance or enforcement matters which relate to Mr Geoffrey Barker (chief remote pilot) and UAS Pacific Pty Ltd. Should any enquiry come to Mark directly or indirectly, he must not reply to the correspondence, and he must promptly notify his direct manager. This plan will be on-going with no expiry date.
Strategy timeframe: ongoing
Review date: 7/5/2021
How the strategy will be monitored
and reviewed: Regular communications regarding COI matters, and Mark to notify his manager if any UAS Pacific or Mr Geoffrey Barker matters are brought to his attention.”
In cross-examination, Mr Barker put to Mr Lewis that in or around February 2017, he was making representations to CASA about Mr Barker’s abilities and flying restrictions in breach of his conflict of interest obligations. In particular, a CASA Inspector who stated that they knew of Mr Barker’s abilities informed others that Mr Barker could not fly up to 20kg rotary aircraft.
The CASA Investigation Report of 17 August 2017 states the following:
“1. In February 2017, a CASA RPAS Inspector noticed an email to the RPAS Team that indicated that UAS Pacific Pty Ltd (UAS Pacific) was authorized to conduct 20kg rotary RPAS training. The Inspector knew Geoffrey Barker who was the current Chief Remote Pilot for UAS Pacific and was of the belief that he did not possess the skills to fly the 20kg rotary.
2. The Inspector obtained the application for Barker’s aircraft rating for 20kg rotary dated 24 February 2016 and also other applications submitted by UAS Pacific on that date. The applications contained the electronic signature of Russell Griffiths who was the Company’s previous Chief Controller. On inspection of the application form for Barker’s 20kg aircraft type rating it appeared to have been interfered with.”
It appears that CASA formed the view that Mr Barker had inappropriately obtained an electronic signature of Mr Griffiths, an assertion denied by Mr Barker. Mr John Moore – Investigator, Canberra made strong recommendations with respect to Mr Barker. I do not know the ultimate outcome of that matter.
In answering questions from me as to how many RPAS Investigators there were in Brisbane in or around February 2017, Mr Lewis stated that he was one of three Investigators. He denied that he was the Investigator referred to in points 1 and 2 of the Investigation Report at [81]. On the balance of probabilities, I find it more likely than not that Mr Lewis was the relevant Investigator, and he went ‘fishing’ to find potential breaches and allegedly inappropriate conduct of Mr Barker.
I note that at the time, Mr Lewis’ restriction was that he would have ‘limited exposure’ to UAS. The restriction was not as strong as him being unable to have any oversight of UAS at all. I do consider, however, the evidence given by Mr Lewis was not credible in respect of what I consider to be his involvement with Mr Barker and UAS at a time so shortly after his employment with UAS ended, and on his own admission, the relationship with Mr Barker dissolved. This is a matter that weighs against Mr Lewis’ credibility.
When Mr Nowak made the Facebook post in March 2021 asserting corruption within CASA, Mr Lewis did no more than forward the email to Mr Duffy per his Conflict of Interest Declaration obligations.
Evidence of Barker
In oral evidence given during the hearing, Mr Barker stated that Mr Nowak had been unwell as a result of the Persons Named behaviour. He said he did not know if Mr Nowak had any pre-existing mental health issue when he joined UAS.
Evidence of Nowak
Mr Nowak stated he wished to have his ‘name cleared’.
He stated that he was hospitalised mid-2019 for an autoimmune condition known as HLA-B27. He said that stress can be a contributing factor. He denies having any psychological condition but was depressed at around the same time his diagnosis for HLA-B27 was made. He stated that he was experiencing some other personal matters.
Mr Nowak gave evidence that he is quite healthy, and he doesn’t believe in taking medications. He does not have a current diagnosis from a doctor.
I noted to Mr Nowak that the definition of bullying within the Act requires the Commission to be satisfied that the behaviour of the Persons Named, said to have bullied him is behaviour that creates a risk to health and safety.
During oral closing submissions, however, while Mr Barker was on his feet, Mr Nowak became very upset at the bar table, at times weeping. I offered to adjourn, however he insisted that he was well enough to hear Mr Barker give oral closing submissions. I noted that he had only a short time earlier given evidence that he was fit and healthy without any psychiatric condition or other ailment. I accept that the proceedings, which concluded in the early evening were stressful for all involved.
Relevant legislation
A worker who reasonably believes that he or she has been bullied at work may apply to the Commission for an order to stop bullying. Section 789FC of the Act provides:
“789FC Application for an FWC order to stop bullying
(1) A worker who reasonably believes that he or she has been bullied at work may apply to the FWC for an order under section 789FF.
(2) For the purposes of this Part, worker has the same meaning as in the Work Health and Safety Act 2011, but does not include a member of the Defence Force.
Note: Broadly, for the purposes of the Work Health and Safety Act 2011, a worker is an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer.
(3) The application must be accompanied by any fee prescribed by the regulations.
(4) The regulations may prescribe:
(a) a fee for making an application to the FWC under this section; and
(b) a method for indexing the fee; and
(c) the circumstances in which all or part of the fee may be waived or refunded.”
Section 789FD of the Act sets out when a worker has been bullied at work, as below:
“789FD When is a worker bullied at work?
(1)A worker is bullied at work if:
(a) while the worker is at work in a constitutionally-covered business:
(i) an individual; or
(ii) a group of individuals;
repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and
(b) that behaviour creates a risk to health and safety.
(2)To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.
(3) If a person conducts a business or undertaking (within the meaning of the Work Health and Safety Act 2011) and either:
(a) the person is:
(i) a constitutional corporation; or
(ii) the Commonwealth; or
(iii) a Commonwealth authority; or
(iv) a body corporate incorporated in a Territory; or
(b) the business or undertaking is conducted principally in a Territory or Commonwealth place;
then the business or undertaking is a constitutionally-covered business.”
The circumstances in which the Commission may make orders to stop bullying are set out in s.789FF of the Act, as produced below:
“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.”
Consideration
Pursuant to ss.789FF(1)(b)(i) of the Act, for the Commission to make orders with respect to an application under section 789FC for an order to stop bullying, it must be satisfied that the worker was bullied at work and that there is a risk that the worker will continue to be bullied at work.
The leading authority on the application of s.789FF(1)(b) in analogous cases is Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank; Bianca Haines.[1] In that case Gostencnik DP held that:
“[15] As s. 789FF(b) makes clear, I must be satisfied not only that Mr Shaw has been bullied at work by an individual or group of individuals but also that there is a risk that he will continue to be bullied at work by that individual or group of individuals. Therein lays the difficulty for Mr Shaw. It seems to me that I have no power to make an order to stop bullying unless I can be satisfied relevantly that there is a risk that at work Mr Shaw will continue to be bullied by the individual or group of individuals identified in his application.
[16] It is clear that Mr Shaw is no longer employed by ANZ. The employment relationship has ended. That Mr Shaw is taking steps to seek a remedy in relation to his dismissal and that that may result in reinstatement at some point in the future does not have a bearing on the question that I must answer and is speculative and uncertain. It seems to me clear that there cannot be a risk that Mr Shaw will continue to be bullied at work by an individual or group of individuals identified in his application because Mr Shaw is no longer employed by ANZ and therefore is no longer at work.
[17] It necessarily follows that I do not have power to make an order to stop bullying and, as a consequence, I am satisfied that Mr Shaw’s application has no reasonable prospect of success.”
This position was subsequently affirmed by the Full Bench in Obatoki v Mallee Track Health & Community Services and Others.[2]
CASA, Mr Duffy and Mr Lewis have made arrangements that Mr Duffy and Mr Lewis will have no contact at all, or anything to do with Mr Nowak, and in some other respects, Mr Barker and UAS. In answering questions from me, both Mr Duffy and Mr Lewis assured the Commission that if they were approached by others to discuss Mr Nowak, they would shut the conversation down, and if the person wished to report a matter, the person would be referred to CASA.
I was suitably impressed with the evidence given by Mr Duffy and Mr Toottell. I consider that they each have suitable regulatory experience to uphold the commitments they have made.
With respect to Mr Lewis, I am of the preliminary view that he has had, since the dissolvement of his relationship with Mr Barker, an axe to grind, more so in respect of matters pertaining to Mr Barker than Mr Nowak. I appreciate that through Mr Nowak, Mr Barker can be affected. It should be noted, however, that Mr Lewis’ restrictions from when he commenced with CASA was ‘limited exposure’ to UAS, not a full prohibition. That full prohibition was not put in place until January 2021.
With respect to the alleged telephone call between Mr Bethell and Mr Lewis, I am not satisfied on the balance of probabilities that Mr Bethell spoke with Mr Lewis. It is entirely possible that Mr Bethell contacted another person who was not Mr Lewis, but identified themselves as Mr Lewis. Mr Bethell’s evidence is not to be criticised; I am of the view that it is possible he was mistaken.
It is not necessary for the Commission to determine if Mr Nowak has been bullied by Mr Lewis; rather, whether Mr Lewis can be entrusted to fulfil the commitments he has made not to have involvement with Mr Nowak.
I am satisfied that under the watchful eye of Mr Toottell, a very impressive witness, Mr Lewis will not have any involvement with Mr Nowak, as per the commitments made by him. CASA has implemented an effective ring-fencing of any oversight by Mr Lewis of Mr Nowak. He won’t be able to consider or review emails with respect to Mr Nowak, nor have any access on CASA’s case management system. He is prevented from emailing or contacting Mr Nowak.
Due to CASA’s application to dismiss the substantive application, the Commission is not tasked with determining if Mr Nowak has been bullied in the past. It is noted that such an examination would need to include whether the behaviour Mr Nowak complains of has created a risk to his health and safety. That examination is not necessary.
I am satisfied that with the measures put in place by CASA, Mr Duffy and Mr Lewis, there is no risk that Mr Nowak will continue to be bullied at work by Mr Duffy and Mr Lewis, and accordingly the Commission does not possess the power to make orders to stop bullying.
I exercise my discretion pursuant to s.587(1)(c) of the Act to dismiss the application as it has no reasonable prospects of success. An Order [PR766911] giving effect to my decision will be published.
CASA has acknowledged that in the event Mr Nowak considers that either Mr Duffy or Mr Lewis does bully him in the future, he is free to bring a fresh application at that time.
COMMISSIONER
Appearances:
C Nowak, on his own behalf.
G Barker, for UAS.
K Riedel of counsel, instructed by T Canny, for the Respondents and Persons Named.
Hearing details:
27 September 2023, Brisbane.
[1] [2014] FWC 3408.
[2] [2015] FWCFB 1661 at [16].
Printed by authority of the Commonwealth Government Printer
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