Damian Stephen
[2022] FWC 1667
•29 JUNE 2022
| [2022] FWC 1667 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Damian Stephen
(AB2020/645)
| COMMISSIONER SIMPSON | BRISBANE, 29 JUNE 2022 |
Application for an FWC order to stop bullying
On 15 June 2022 an application was filed by Mrs Denise Fitzgibbons (Mrs Fitzgibbons) under section 587(1) of the Fair Work Act 2009 (the Act) that an application for an order to stop bullying in matter AB2020/645 filed on 28 September 2020 be dismissed on the grounds that it has no reasonable prospects of success.
The original application filed by Mr Damian Stephen (Mr Stephen/the Applicant) on 28 September 2020 was directed against Mrs Fitzgibbons and sought orders that:
Mrs Fitzgibbons complete a workplace bullying and harassment course;
(ii)Mrs Fitzgibbons apologise in writing and undertake not to bully Mr Stephen in the future; and
Mrs Fitzgibbons speaks directly with Mr Stephen “in the event she has a problem rather than her current behaviour.”
The matter has a considerable history. After the initial application was filed on 28 September 2020, a Form 73 response was filed on 15 October 2020 by the employer, Seahill Enterprises Pty Ltd (Seahill), denying the allegations on behalf of Mrs Fitzgibbons who at the time was the sole director of Seahill.
Mr Stephen said in his originating application that his employment relationship with Mrs Fitzgibbons was unusually strong, sufficient enough for Mrs Fitzgibbons to request that he recruit a new lawyer to assist her in resolving her private legal affairs. Mr Stephen said the concerns were predominantly family related. In addition, due to the complex nature of these concerns and the structures that would need to be created to resolve Mrs Fitzgibbons concerns, she requested that not only did Mr Stephen attend all of the meetings with her, that he additionally assisted her in implementing the changes she wished. Mr Stephen said Mrs Fitzgibbons attitude towards him changed significantly, and unexpectantly some 8 months before he filed the application in September 2020.
I chaired a number of conferences between the parties in January of 2021 in an attempt to resolve the issue. In the course of these conferences both parties alluded to a separate dispute concerning Mrs Fitzgibbons estate involving members of Mrs Fitzgibbons family which appears to be what Mr Stephen was referring to when discussing family related matters in his application, and that Mr Stephen appeared to become associated with a particular side in this dispute.
In the course of the conciliation of the matter, substantial offers were made on a without prejudice basis to attempt to resolve the matter and it was somewhat surprising that the matter did not resolve given the offers exchanged when considered in light of the remedies available through the application before the Commission.
Following the failure to reach settlement after extensive efforts, I issued directions for the parties to file evidence and submissions and for the matter to be heard on 22 and 23 February 2021. An adjournment was sought by the Respondent on the basis that Counsel was not available on those dates.
On 4 February 2021, the Applicant then filed a number of extensive applications for production of documents, the Respondent also sought production of documents on 8 February, objections were lodged by the Respondent to the applications for production on 10 February and the matter was listed for 11 February 2021.
After an initial hearing on 11 February 2021, the matter was relisted for further argument on 15 February 2021. On 24 February 2021, I issued a lengthy decision dealing with the interlocutory production dispute and issued orders for production.
The matter was listed for directions on 2 March 2021 in an attempt to program the matter for final hearing. At this directions hearing, the Applicant advised that it would be lodging an appeal of the interlocutory decision and sought an adjournment of the matter pending the outcome of the appeal which was granted.
After the determination of the Full Bench appeal, on 13 May 2021 an email was sent from my chambers to the parties advising that the matter would be listed on 20 May 2021 to deal with the outstanding issues concerning production of documents, and to settle directions for final hearing.
Further programming of the final determination of the bullying application was adjourned again after the Commission was advised by the Applicant that the Applicant had lodged an appeal to the Federal Court against the decision of the Full Bench of the Commission regarding the production issue.
The Full Court of the Federal Court issued an order on 14 February 2022 dismissing the application and awarding costs against the Applicant.
Since that time there has been no attempt to reagitate this bullying application by the Applicant. The allegations in the application now pertain to events said to have occurred in 2020.
The nature of the bullying jurisdiction is that it is intended that matters be dealt with promptly, and the Commission may make orders where the Commission is satisfied that the worker has been bullied and there is a risk that a worker will continue to be bullied.
Since the commencement of the matter, I have harboured some reservations about the likelihood of Mr Stephen, a middle aged man in a senior managerial role being capable of being bullied at work by an elderly woman well into her nineties, and that Mr Stephen’s safety could be at risk because of Mrs Fitzgibbons. Regardless of those reservations, I have now formed a clear view that given the material that accompanied the section 587 application filed on 15 June 2022, and the statutory declaration of Lara Nicole Radik (Ms Radik), a Partner at Carter Newell Lawyers, it is a sufficient answer to the original remedies sought by the Applicant way back on 28 September 2020.
As part of the section 587 application, Mrs Fitzgibbons offered to the Commission an undertaking. The undertaking is referred to in the Statutory Declaration of Ms Radik, and is included as attachment F with the section 587 application and reads as follows:
“Undertakings by Denise Fitzgibbons
To: The Fair Work Commission
I, Denise Therese Fitzgibbons, undertake as follows:
1. I will not bully Mr Damien Stephen in future.
2. I will not initiate any contact with Mr Stephen, whether by telephone, email or otherwise.
3. I will not have any responsibility for directly managing Mr Stephen.
4. On any occasion when I intend to attend the Robina Pavilion or the Logan City Tavern, I will take all reasonable steps to ensure that I do not come into direct contact with Mr Stephen. In the event Mr Stephen is asked not to attend the workplace in these circumstances, he will not suffer any loss of pay by reason of not attending work.”
The Statutory Declaration of Ms Radik also states that on 20 January 2022 Mrs Fitzgibbons completed a workplace bullying and harassment course provided by IRIQ Law. The Statutory Declaration of Ms Radik further states that Mr Stephen no longer reports to Mrs Fitzgibbons. Instead, Mr Stephen reports to:
Seahills general manager for all operational matters; and
(ii)an external HR consultant engaged by Seahill for employment related matters.
I accept the contents of Ms Radik’s Statutory Declaration.
I have also formed the view that given the manner in which the Applicant has conducted the matter to date, including in taking no action to pursue it to final hearing after the Full Federal Court order issued in February 2022, that the Applicant’s actions indicate the Applicant is not in fact motivated to pursue this application to final determination. An undertaking was given to the Commission by the Respondent in February 2021 that the Respondent would not terminate the Applicant until this application was determined.
I have formed the view on the basis of the chronology of events that it is likely that the Applicant is motivated to preserve this arrangement in preference to a final hearing of the bullying application. What other explanation can there be for the Applicant taking no further action to pursue this matter after the determination of the Full Federal Court. The undertaking made to the Commission in 2021 does not deal with bullying, it goes to preservation of the employment relationship.
The matter has only been re enlivened now at the initiative of Mrs Fitzgibbons not the Applicant. This does not indicate Mr Stephen believes that there is a risk he will continue to be bullied at work. I would go further and indicate I am inclined to the view having considered the history of the matter that the Applicant has engaged in a legal strategy to forestall the substantive matter being finally heard and determined on the basis that it already has an undertaking that preserves the employment relationship.
It is notable that a number of hours after the issuing of directions to the parties on 28 June 2022 for the filing of material to deal with the section 587 application, the Applicant’s representatives filed a fresh Form 52 application seeking production of a wide array of documents and foreshadowing an intent to run a substantial case in opposition to the section 587 application. After I indicated that I would decline to issue the orders (as I had formed the view that it was premature to do so until I had seen the parties material) the Applicant’s representative sought to cavil with my ruling.
On reflecting on the matter, given I have now settled on the opinions set out above, I am satisfied there is no reasonable prospect of the Applicant ever succeeding in having the orders sought in the original application being made at some stage in the future.
I have concluded it is appropriate in the somewhat unique circumstances of this case not to require the parties to prepare their respective cases regarding the strike out application as is currently directed, and also not to hear from the parties any further. Allowing the pending litigation to proceed would cause the parties to incur significant time and cost when I have already formed the view that the section 587 proceedings are unnecessary because I am already of the view without any more material, that the substantive application has no reasonable prospect of success and more costs would be thrown away by any more time being spent by the parties and their representatives on the matter. The fact that the person named in the application Mrs Fitzgibbons is an elderly woman, is another reason why I have determined this course is appropriate and further proceedings are unnecessary.
Of course, there is no bar in the Fair Work Act 2009 to a fresh bullying application being brought at some point in the future if new issues arise although given what has been set out above that would seem highly unlikely.
For the reasons set out above, I have decided to vacate the current directions, to accept the undertaking offered to the Commission by Mrs Fitzgibbons as referred to in the Statutory Declaration of Lara Radik, and to dismiss Mr Stephen’s bullying application on my own initiative pursuant to section 587(1)(c). Accordingly, the application is dismissed.
COMMISSIONER
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