David Gibson

[2020] FWC 3373

[2020] FWC 3373

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

David Gibson
(AB2020/160)

DEPUTY PRESIDENT BINET PERTH, 4 AUGUST 2020

Application for an FWC order to stop bullying.

[1] On 5 March 2020, Mr David Gibson (Mr Gibson) filed an application (Application) with the Fair Work Commission (FWC) for an order to stop bullying in accordance with section 789FC of the Fair Work Act 2009 (Cth) (FW Act).

[2] Mr Gibson was employed by Access Plus WA Deaf Inc (Access Plus) in the role of Chief Executive Officer (CEO). Mr Gibson alleges that the following individuals have engaged in bullying behaviours towards him:

• Mr Clint Ford

• Mr Damien Thorp

• Mr Shane Buise

• Ms  Jakkie Skinner

• Ms  Gillian Arkell

• Ms Narenne Barrett

• Ms Kathleen Bozanic

(collectively the Named Persons)

[3] On 27 March 2020, Access Plus lodged a Form F73 Employer/Principal Response to the Application.

[4] On 27 March 2020, the Named Persons filed a Form F74 response from a person against whom bullying has been alleged.

[5] On 2 April 2020, Chambers contacted the parties to confirm their availability to participate in a conciliation conference. Access Plus indicated that it would be unavailable to participate in a conference prior to 28 April 2020. Given the nature of the Application, the submissions of Mr Gibson in relation to the need for a timely resolution of the matter and the obligation placed on the FWC by the FW Act to determine matters, expeditiously, the Application was listed for a conference on 15 April 2020.

[6] On 14 April 2020, Mr Gibson was informed that his employment with Access Plus had been terminated.

[7] On 14 April 2019, Access Plus on its own behalf, and on behalf of the Named Persons, filed an application under section 587(3)(b) of the Fair Work Act 2009 (Cth) to dismiss the Application (Dismissal Application).

Background

[8] Access Plus was originally established as the WA Adult Deaf and Dumb Society in 1921 to support the WA Deaf community. Over the years, it has had a series of name changes but has continued to be the primary provider of services and community engagement for the WA Deaf Community. 1

[9] Access Plus is a charity registered with the Australian Charities and Not-for-profits Commission (ACNC) and as such, is regulated by the Australian Charities and Not-for-profits Commission Act 2012 (Cth).  2

[10] Access Plus is and has been a registered incorporated association under the various Western Australian Associations Incorporation Acts since 31 January 1930. 3

[11] As an incorporated association, the organisation, structure and operation of Access Plus is governed by a constitution (Constitution). The Constitution provides for the appointment of a Board of between 7 and 13 Board Members to manage the affairs of Access Plus. The Constitution also provides for the appointment from among the Board Members, various office-bearers, including a Secretary. 4

[12] As the child of deaf parents, Mr Gibson has a long history of involvement in the deaf community in Western Australia. Over the years, Mr Gibson has had cause to access services provided by Access Plus on his behalf, on behalf of his parents and, to participate in social events organised by Access Plus. 5

[13] On 15 August 2017, he commenced in the role of Chief Executive Officer of Access Plus.  6

[14] During his employment, he performed secretarial functions for the Board.

[15] On 14 January 2020, Mr Gibson was handed a letter informing him that he was stood down from his role of CEO and Secretary on full pay following the receipt by the Board of a whistle-blower complaint. 7

[16] On 14 April 2020, following an external investigation, Mr Gibson was informed that his employment with Access Plus had been terminated.  8

[17] During the 2 May 2020 Board meeting, the Board formally resolved to ‘discontinue’ Mr Gibson’s appointment as Secretary and appoint Ms Annette Perrin (the Acting CEO) as Secretary. 9

Consideration

[18] Access Plus have applied to dismiss the Application pursuant to section 587 of the FW Act on the ground that the Application has no reasonable prospect of success.

[19] Section 587 of the FW Act provides:

“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.”

[20] The Courts and Tribunals have long held that the power to dismiss a substantive application should only be exercised cautiously. Every applicant has the right to have all matters of law and fact decided at a hearing, and the FWC should not exercise its power to deprive an applicant of that right unless the applicant’s claim is so obviously untenable that it can not possibly succeed. 10 Before summary disposal can be justified, the case must be a very clear one, in which there is no real question of fact or law to be determined at a final hearing.11

[21] Applying those principles in an application brought pursuant to the FW Act, Deputy President Gostencnik observed in Shaw v Australia and New Zealand Banking Group Limited t/a ANZ Bank that: 12

“A conclusion that an application has no reasonable prospects of success should only be reached with extreme caution and in circumstances, for example, where an application is manifestly untenable or is groundless or is so lacking in merit or substance as to be not reasonably arguable.”

[22] Mr Gibson has made an application pursuant to section 789FC of the FW Act for an order under section 789FF to stop bullying in the workplace. Section 789FF relevantly provides that:

“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.”

[23] Access Plus submit that the FWC has no power make an order to stop bullying unless it can be satisfied that Mr Gibson is a worker and that there is a risk that Mr Gibson will continued to be bullied at work by those individuals and groups identified in the originating application.

[24] Access Plus submit that the Application has no reasonable prospects of success because there is no future risk of Mr Gibson being bullied at work because his employment with Access Plus was terminated on 14 April 2020 and there are not proceedings on foot or other matters which might result in Mr Gibson’s reinstatement as CEO.

[25] Mr Gibson asserts that he remains a member of the Board of Access Plus, the Secretary of the Board of Access Plus and a member of Access Plus and that in these capacities, and in his capacity as a volunteer or participant at Access Plus events, he is a worker for the purposes of section 789FF of the FW Act and remains at risk of being bullied at work.

[26] Access Plus further submit that if Mr Gibson is a volunteer then as the Application only alleged bullying in his capacity as an employee any allegation that he is at risk of being bullied as a volunteer must be brought as a new and separate application.

What is a ‘Worker’?

[27] For the purposes of section 789FC, the term ‘worker’ has the same meaning as in the Work Health and Safety Act 2011 (Cth) (WHS Act). The WHS Act relevantly defines a worker as a person who carries out work in any capacity for a person conducting a business or undertaking, 13 including a volunteer, – except a person volunteering with a wholly ‘volunteer association’ with no employees (whether incorporated or not).

[28] It is uncontested that Access Plus is a legal entity conducting a business or undertaking within the meaning of the WHS Act. For the purposes of the same Act, it is not considered a wholly ‘volunteer association’ as it has both employees and volunteers.

[29] Mr Gibson will, therefore, be a ‘worker’ for the purposes of section 789FC of the FW Act if he carries out work in any capacity for Access Plus

Is Mr Gibson a Member of Access Plus, a Board Member of Access Plus or Secretary of Access Plus?

[30] Mr Gibson says at the Board Meeting held on 28 August 2017, the Board requested that he accept the appointment as the Secretary of Access Plus. He also says that based on legal advice the Board had received, the Board believed that it was necessary to allow him to become a Member of Access Plus and be appointed a Board Member to be eligible to be Secretary.

[31] As evidence of this, he points to an unsigned and undated circular resolution of the Board Members which he says was circulated in July 2017, which states:

“BACKGROUND

The role of Secretary of the WA Deaf Society has been held by Rebecca Adam as Interim CEO. It is a Constitutional requirement of the Association that the position of Secretary is undertaken by a member of the Board. Section 13.2 (b) of the Constitution specifies that in the event of resignation of the Secretary, the Board may appoint a new Secretary for the remainder of the term.

RESOLUTION/S

It is resolved that: during the period where the CEO role is vacant, the Board appoints Ms Kathleen Bozanic as Secretary until such time as a new CEO is recruited and appointed as Secretary by the Board or at the AGM.”

[32] Mr Gibson says consistent with this circular resolution at the meeting of 27 August 2017, the Board resolved to approve him becoming a Member, appointed him as a Board Member to fill a casual vacancy and, elected him Secretary. He tendered as evidence the Board Minutes of the 28 August 2017 Board Meeting, which stated:  14

“The Board expressly approved that David Gibson is now a member of the WA Deaf Society under section 7.1(b) of the Constitution. The Board confirms and approves the appointment of David Gibson as Secretary of the WA Deaf Society Inc.”   

[33] Mr Gibson says that he was appointed to the Board to fill a casual vacancy and elected to the position of Secretary every year subsequently. He tendered as evidence of this a copy of the Minutes of the Board Meeting of 25 November 2020, which record that he was ‘elected’ as an Office Bearer in the role of Secretary. 15 He says that his current term will expire at the 2020 AGM. This is consistent with the 2019 Annual Information Statement issued by the Australian Charities and Not-for-Profits Commission (ACNC) which listed Mr Gibson as the Secretary and a Responsible Person.16

[34] I note that Mr Gibson was removed as a Responsible Person from the ACNC register in February 2020.

[35] Mr Gibson submits that his appointment as a Board Member and his appointment as Secretary was voluntary and separate to his employment as CEO. In support of this, he points out that serving on the Board and/or performing the role of Secretary was not a responsibility listed in the position description for his contract. 17 He also points to clause 5.b of the Constitution which sets out the circumstances in which a Board Member may receive payment. Given that the clause prohibits payments to Board Members, he submits that all Board Members must be acting in a volunteer capacity.

[36] He says that his service on the Board was always acknowledged as voluntary service by other Board Members. He also says that he was under no contractual obligation to attend Board Meetings in his capacity as an employee and did miss meetings from time to time in the same way as Board Members performing their duties as volunteers might.

[37] As evidence that he participated in the meetings as a Board Member, he tendered two unsigned and undated out of session resolutions which include his name in the list of Board Members required to sign and date the resolution.

[38] Mr Gibson points to clause 10.10 of the Constitution, which provides that the officer bearers (including the Secretary) “… shall be elected from the Board Members amongst themselves …” at the first Board meeting after the AGM. He says that given this clause, any record of his election as Secretary in the Board Minutes, impliedly acknowledges that he was a Board Member.

[39] Mr Gibson says that he has not resigned as a Board Member and/or as Secretary. He also says that notwithstanding his suspension from his role of Secretary on the 14 January 2020, there has been no Board correspondence to him indicating that he had been removed from his position as the Secretary or as a Board Member as required by the Constitution.

[40] Mr Gibson, therefore, asserts that his service as Secretary and as Board Member is voluntary, that it did not terminate when his employment was terminated and that he is still a Board Member, the Secretary of Access Plus and, a Member of Access Plus.

[41] Access Plus deny that Mr Gibson was a Member of Access Plus. In support of this assertion, Access Plus tendered a copy of the minutes of the August 2016 Board Meeting. The minutes record that the Board resolved to prohibit employees of Access Plus from membership of Access Plus. Access Plus also tendered a copy of the Register of Members which does not identify Mr Gibson as a Member of Access Plus. 18

[42] Access Plus deny that Mr Gibson was appointed to the Board and say that there is no evidence that Mr Gibson was elected to the Board in accordance with the procedural requirements for the election set out in clause 10.5 of the Constitution. They say the Board Minutes of August 2017 merely confirms that he was appointed to perform the Board secretarial functions not as a Board Member.

[43] Consistent with this, Access Plus say that he has never participated in Board voting at physical Board meetings and that the Circular Resolutions were sent to Mr Gibson in his capacity as Secretary and that in error included his name amongst those eligible to vote. Access Plus also point to the absence of any evidence that Mr Gibson voted at any physical Board Meeting.

[44] Access Plus say that it obtained legal advice after the 2017 circular that stated it was not a constitutional requirement that the duties of the Secretary be performed by a person who is a Board Member and that have acted since on this basis.

[45] Access Plus say that Mr Gibson attended Board Meetings in his capacity as CEO in accordance with clause 16(d) of the Constitution, which permits the Board to invite the CEO to attend board meetings. They say that it was in his capacity as CEO he was required to perform the Secretarial duties. Access Plus say that his performance of Board Secretarial duties was contingent upon his employment as CEO and that his responsibilities in this regard came to an end when his employment came to an end.

[46] I have considered the conflicting evidence of the parties.

[47] It is true that serving on the Board or performing the functions of Secretary are not listed in Mr Gibson’s job description. However, clause 3 of Mr Gibson’s contract of employment provides as follows:

“The initial responsibilities of the position are outlined in Schedule 2, but may be amended from time to time by mutual agreement between the Board and the CEO.”

[48] There is, therefore, scope within his contract of employment for him to have been directed and accepted a duty to attend and/or participate in Board Meetings.

[49] Clause 10.3 of the Constitution provides that:

“(a) A person must be a Member and must be eligible to vote in order to be eligible for election as a Board Member or to hold office as a Board Member.”

[50] Clause 2 of the Constitution defines a “member” as follows:

“Member means a member of the Association whose name is set out in the Register of Members in accordance with rule 7.5.

[51] Board Members may be elected by the Members at a General Meeting pursuant to clause 10.2(e) of the Constitution as follow:

“(e) Half the maximum number of Board Members (rounded up to the nearest whole number) must be elected by the Members in a General Meeting, to hold office, subject to rules 10.3(d) and 10.3(e), for a period of three years.”

[52] Mr Gibson asserts that he was appointed as a Board Member pursuant to clause 10.7 to fill a casual vacancy each year. 19 Clause 10.7(a) provides that:

“(a) In the event of a Board Member ceasing to hold office pursuant to rule 10.6 or otherwise where the Board has an existing vacancy, the resulting casual vacancy may be filled by a Member who is eligible to become a Board Member by the Board appointing that Member as a Board Member, who shall hold office until the next following Annual General Meeting.”

[53] As pointed out by Access Plus, clause 10.5 sets out various procedural steps for election as a Board Member, which include as follows:

“(b) Any person wishing to be elected as a Board Member must lodge the prescribed nomination form signed by themselves and by two other Members with the Secretary at least 14 days before the date of the Annual General Meeting.”

[54] However, it appears that the requirement to lodge a prescribed form only applies to potential Board Members who are elected by the Members pursuant to clause 10.2(e) and not those appointed by the Board. I am, therefore, not satisfied that a lack of compliance with clause 10.5 is sufficient to disqualify a person from being appointed as a Board Member by the Board.

[55] Clause 13.1 of the Constitution states that:

“The Board shall appoint a person to fulfil the role of Secretary annually at its first Board Meeting immediately following each Annual General Meeting.”

[56] Clause 16(d) of the Constitution states that:

“(d) The Board may invite the Chief Executive Officer to attend Board Meetings.”

[57] Clause 16(c) of the Constitution permits the Board to direct the CEO to perform the following duties:

“Subject to applicable law, the Board may:

(i) Delegate any of its powers to the Chief Executive Officer for any period and on any terms (including the power to further delegate) as the Board thinks fit;

(ii) Confer in the Chief Executive Officer the powers, discretions and duties (including any powers, discretions and duties vested in or exercisable by the Directions) as they think fit;

(iii) Withdraw, suspend or vary any of the powers, discretions and duties conferred on the Chief Executive Officer; and

(iv) Authorise the Chief Executive Officer to delegate all or any of the powers, discretions and duties conferred on him or her.”

[58] The Board Minutes of 28 August 2017 appears to expressly override the earlier Board resolution precluding employees of Access Plus from applying to become Members of Access Plus. However, given that Mr Gibson’s name does not appear on the Register of Members, it would appear that he is not a Member for the purposes of the Constitution. If he is not a Member, then he is not eligible to be a Board Member and, therefore, not eligible to be Secretary.

[59] Even if I am wrong in this regard, and Mr Gibson is in fact a Member of Access Plus, I am not satisfied that Mr Gibson was a Board Member.

[60] It is agreed that Mr Gibson was not elected as a Board Member. There is no evidence before me that he was expressly appointed as a Board Member via any other mechanism available under the Constitution.

[61] Mr Gibson has not identified any Board Member that ceased to hold office creating a casual vacancy for him to fill in any of the years in which he says he was appointed as a Board Member to fill a casual vacancy. Furthermore, only a Member is eligible to be appointed this way. For the reasons above, I am not satisfied that he is a Member for the purposes of the Constitution. I am, therefore, not satisfied that he was appointed as a Board Member to fill a casual vacancy in accordance with the Constitution.

[62] The evidence of Board Meeting minutes purporting to record Mr Gibson’s ‘election’ as Secretary does not cause me to conclude that Mr Gibson was appointed in accordance with the Constitution as a Board Member by virtue of his ‘election’ as Secretary. It is constitutionally possible and consistent with the evidence that he could perform the duties of Secretary pursuant to clause 16 without being the Secretary.

[63] The evidence suggests that the custom and practice of Access Plus is to have the CEO perform the duties of Secretary while they hold the position of CEO. For example:

a. The July 2017 Circular Resolution recorded that:

“The role of Secretary of the WA Deaf Society has been held by Rebecca Adam as Interim CEO.

…

… until such time as a new CEO is recruited and appointed as Secretary”

b. The Minutes of the 28 August 2017 meeting record the appointment of an interim secretary “… during the period of the CEO position vacancy”. 20

c. Mr Gibson commenced attending the Board Meetings only after his appointment as CEO.

d. The acting CEO Ms Perrin was appointed as Secretary by the Board on 2 May 2020 after Mr Gibson’s employment as CEO was terminated.

[64] The evidence of Mr Ford is that Mr Gibson did not participate in any closed or confidential Board discussions and resolutions. There is no evidence which corroborates Mr Gibson’s evidence that he voted at physical Board Meetings. Given the conflicting evidence of Mr Ford and Mr Gibson, the unsigned and undated out of sessions resolutions are not conclusive.

[65] Based on all the evidence before me, I am of the view that Mr Gibson’s presence at the Board meetings is best characterised as by virtue of clause 16(d) of the Constitution which permits the Board to invite the CEO to attend Board Meetings.

[66] The evidence of Board Meeting minutes purporting to record Mr Gibson’s ‘election’ or ‘appointment’ as Secretary do not cause me to conclude that Mr Gibson was appointed Secretary.

[67] Pursuant to clause 10.10 of the Constitution to be eligible to be appointed by the Board as the Secretary the person must be a Board Member. For the reasons articulated above, I am not satisfied that Mr Gibson was appointed as a Board Member or that he was eligible to be appointed as a Board Member.

[68] Pursuant to clause 16(c) of the Constitution, rather than appoint a Secretary from among their number, the Board may delegate the duties vested in or exercisable by the Board (such as the duties of Secretary) in the CEO. The delegation of board secretarial functions to a CEO who is not a Director is commonplace in the private sector and amongst incorporated associations due to the administrative nature of the role.

[69] Board Members of Access Plus perform their duties voluntarily in a part time capacity. The Board minutes appear to be templated and are exceptionally brief. Board Members do not necessarily have sufficient legal knowledge to appreciate the distinction between an election or appointment of an office bearer and the delegation of duties otherwise exercisable by the Board. Based on all the evidence before me, I am satisfied that the reference to Mr Gibson being ‘elected’ or ‘appointed’ as Secretary is merely a shorthand layman’s record of the delegation of secretarial duties to him pursuant to clause 16(c) of the Constitution.

[70] The assertion that Mr Gibson was merely delegated the secretarial duties is consistent with the evidence of the stand down letter issued to Mr Gibson, which purports to stand him down as CEO and Secretary but, makes no reference to standing him down as a Board Member.

[71] The evidence is that Access Plus having terminated Mr Gibson’s employment as CEO no longer require him to attend Board Meetings or perform the secretarial functions delegated to him. On this basis, Mr Gibson’s ‘work’ attending Board Meetings and performing delegated secretarial duties ended when his employment concluded.

[72] Potentially Mr Gibson may successfully challenge his status as a Member of Access Plus and having established that he is a Member his ‘appointment’ as a Board Member and Secretary. Alternatively, he may apply for membership and stand for election to the Board at the next Annual General Meeting. In either event, the Named Persons may or may not chose to remain on the Board or seek to have him removed. These are things which may or may not happen sometime in the future. I cannot, however, be presently satisfied that Mr Gibson is a Member, Board Member or Secretary of Access Place, that in any of those capacities he is performing work for Access Plus or that a risk exists of him being bullied performing that work.

[73] If it is the case that in some currently indeterminable point in the future Mr Gibson does recommence attending Board meetings, such attendance qualifies him as a ‘worker’ for the purposes of section 789FC, and he experiences bullying at work then he would, of course, be able to make a new and separate application for an anti-bullying order at that time.

[74] If Mr Gibson was, and remains, a Member, Board Member and Secretary of Access Plus and his attendance at and participation in Board Meetings was in a purely voluntary capacity entirely separate to his engagement as CEO, I am not satisfied that any bullying he may or may not have experienced in that capacity is within the scope of the original Application.

[75] The Application alleges bullying by a subordinate in the workplace and by the Board in the manner in which it undertook its investigation into the whistleblower allegations about Mr Gibson’s discharge of his duties as CEO. The Application makes no reference to any bullying of Mr Gibson by the Named Persons during his attendance at Board Meetings or in his performance of Board secretarial duties.

[76] Mr Gibson only raised allegations of being bullied as a Member, Board Member or Secretary after Access Plus made the Dismissal Application. Those allegations relate only to a future risk of bullying and don’t identify any historical bullying in his capacity as a Board Member which might ground the basis for an order to prevent bullying in his capacity as a Board Member in the future. Conversely, there is not any evidence before me of a future risk of the Named Persons bullying Mr Gibson in his capacity as an employee.

Is Mr Gibson a volunteer by virtue of his attendance at or access to Access Plus events and services?

[77] Mr Gibson says that he has participated since his childhood, and will continue to participate in the future, in various government funded programs for the benefit of the deaf and their family and friends undertaken or delivered by Access Plus. He cites as an example the Statewide Consultancy Services Targeted Disability Professional Services Agreement that Access Plus has in place with the WA Government’s Department of Communities. He says that this funding has been utilised in the past for information days such as Cyber Scam training or community inclusion events like Seniors Walking Group, Rottnest Island trips or funding broader community events like the Community Christmas party and Easter Picnic. 21

[78] He also refers to another program, the Commonwealth Dept of Social Security – Children Parenting and Support Program, with which his mother is involved which he says he has and will continue to accompany her to support her and provide volunteer work in the program.  22

[79] He also says that he has been placed on the volunteer roster for a variety of events hosted by Access Plus such as the Community Christmas Party in 2019. 23

[80] He also alleges that in the past few months, he has been approached by deaf people to provide advice on dealing with their NDIS provider of which Access Plus is one. He says that it is not unreasonable to expect that he will continue to be a participant as a volunteer support person for a person who receives funding under the NDIS and has engaged Access Plus as their service provider. He notes that under the NDIS Code of Conduct, Access Plus could not refuse to have him as a participant in any meeting as a volunteer support person for another Deaf or Hard of Hearing person.  24

[81] The evidence of Access Plus is that it has a formal volunteering program and that Mr Gibson has never participated in the program as a volunteer nor, given the reasons for which he was terminated, would he be permitted to participate in the future. 25

[82] The definition of ‘worker’ contains two primary elements. First, the person must carry out work, and second, the work must be carried out for a person conducting a business or undertaking. The work may be carried out in any capacity. There is no requirement for any contract or any payment for the work. However, the work must be carried out for the other person or entity.

[83] As explained by Vice President Watson in Arnold Balthazaar v Department of Human Services (Commonwealth) 26 in relation to a father in receipt of a carers payment from the Federal Government for his daughter:

“[26] My conclusion is reinforced by a consideration of the context of the anti-bullying provisions of the FW Act. In my view, while obviously intended to cover a broad range of work arrangements, the provisions are not unlimited. ln my view they are clearly not intended to cover relationships such as students performing work for teachers, domestic work by family members or relationships outside the context of paid or unpaid work in the commonly understood sense. The payment of social security benefits based on satisfaction of statutory criteria does not in my view involve work for the Department in the undertaking of administering its statutory and administrative responsibilities. I therefore do not regard the carer payment as giving rise to the requisite connection between the work he undertakes as a carer and the undertaking of the Department. I do not believe that Mr Balthazaar performs his carer work for the Department.”

[84] The examples which Mr Gibson cites are not examples of Mr Gibson performing volunteering work for or on behalf of Access Plus. Instead, they are examples of him supporting family and friends who are accessing Access Plus services or participating in Access Plus events or delivering Access Plus services. Access Plus have made it clear that they do not intend to call upon his services in a volunteer capacity in the future. I am not satisfied that informal volunteering such as helping tidy up at an event constitutes work for an on behalf of an entity. Rather it is a charitable act. I am, therefore, not satisfied that by virtue of his accessing Access Plus services on his own behalf or, on behalf of others or, attending Access Plus events, he is a worker for the purposes of section 789FF and is at risk of being bullied at work.

[85] In any event, I am not satisfied that any bullying he may or may not experience as a volunteer participant in Access Plus events or services is within the scope of the original Application.

[86] The Application alleges bullying by a subordinate and by the Board in the manner in which it undertook its investigation into the whistleblower allegations about Mr Gibson’s discharge of his duties as CEO. The Application makes no reference to any bullying of Mr Gibson by the Named Persons during his attendance at Access Plus programs or events or in accessing Access Plus services.

[87] Allegations of being bullied as a volunteer were only raised by Mr Gibson after Access Plus made the Dismissal Application. Those allegations relate only to a future risk of bullying and don’t identify any historical bullying in his capacity as a volunteer which might ground the basis for an order to prevent bullying in his capacity as a volunteer in the future. Conversely, there is no evidence before me of a future risk of the Named Persons bullying Mr Gibson in his capacity as an employee.

[88] On the application of Access Plus and, the Named Parties, I dismiss the Application pursuant to section 587 of the FW Act for the reasons set out above.

DEPUTY PRESIDENT

Appearances:

David Gibson, Applicant

Michael Baldwin appeared on behalf of the Respondent

Hearing details:

Thursday, 2 July 2020

Fair Work Commission

Perth

Final written submissions:

3 JULY 2020 Applicant

9 JULY 2020 Respondent

Printed by authority of the Commonwealth Government Printer

<PR720537>

 1   Digital Court Book filed on 4 June 2020 at page 88.

 2   Ibid at page 88.

 3   Ibid.

 4   Ibid at pages 510-545.

 5   Ibid at page 88.

 6   Ibid at page 89.

 7   Ibid at page 106.

 8   Ibid at page 90.

 9   Ibid at page 547.

 10   Burton v Shire of Bairnsdale (1908) 7 CLR 76 at [92].

 11   Dey v Victorian railway Commissioners (1949) 78 CLR 62 at [91].

 12   Shaw v Australia and New Zealand Banking Group Limited t/a ANZ Bank: Bianca Haynes [2014]

FWC 3408 at [8].

 13   Work Health and Safety Act 2011 (Cth) s 7(h).

 14   Digital Court Book filed on 22 June 2020 at page 189.

 15   Ibid at page 176.

 16   Ibid at page 181.

 17   Ibid at page 94.

 18   Ibid at pages 505, 549.

 19 I note that clause 10.3(d) and (i) appear to offer to other potential mechanisms for appointment as a Board Member.

 20   Digital Court Book filed on 22 June 2020 at page 202.

 21   Ibid at page 92.

 22   Ibid.

 23   Ibid at page 190.

 24   Ibid at page 92.

 25   Ibid at page504.

 26   [2014] FWC 2076 [26].