Douglas Steley v Country Fire Authority

[2020] FWC 1986

[2020] FWC 1986

FAIR WORK COMMISSION

DECISION

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

Douglas Steley
v
Country Fire Authority
(AB2019/279)

COMMISSIONER YILMAZ MELBOURNE, 17 APRIL 2020

Application for an order to stop bullying – Applicant dismissed as volunteer firefighter – no risk of continued bullying at work – application for an order to stop bullying dismissed on the basis of no reasonable prospect of success.

[1] On 23 May 2019 Mr Douglas Steley filed an application for an order to stop bullying pursuant to s.789FC of the Fair Work Act 2009 (the Act). Mr Steley alleges that he has been bullied while a volunteer firefighter with the Country Fire Authority (CFA) after he filed a complaint in 2013 about the behaviour of a tanker captain (the captain).

[2] There was a fire call in October 2013; Mr Steley and his friend were on a fishing trip and listening to the CFA radio. They were not called out to the fire but were in the vicinity of the fire. After attempting to locate the fire in parklands, they noticed the tanker driving towards them. Mr Steley tried to communicate to the driver of the tanker by flashing his vehicle lights and sounding the horn. Mr Steley took offence to the manner in which the captain of the tanker responded in the situation.

[3] After the fire incident, Mr Steley was dissatisfied with how a friend was dealt with, and he filed an internal complaint about the captain. Mr Steley alleges that he has been bullied by more than 17 individuals plus various departments and teams since his complaint. Most individuals were individually named as CFA staff. For the purposes of this decision, there is no need to list the individual names or departments/teams that Mr Steley has identified in his application. Mr Steley’s allegations of bullying essentially relate to “avoidance” such as not returning calls, failing to schedule meetings or not getting an answer to his complaint.

[4] The CFA and the respective individuals dispute the allegations of bullying, and it is alleged that individuals have raised concerns about Mr Steley’s conduct.

[5] On 8 March 2019, after Mr Steley gained access to the CFA headquarters he was suspended as a volunteer due to concerns over his fitness to safely perform his duties.

[6] This matter was referred to me and I held the first of three conciliation conferences commencing in July 2019. I did not make any determination as to whether Mr Steley was bullied or whether bullying behaviour had occured. It was agreed at the first conference that the parties would resolve their differences and I issued an Outcomes Report which detailed the actions for both parties, consistent with their agreement. Among the agreed actions, Mr Steley would attend an independent medical examination and the CFA would provide Mr Steley with a verbal response to his 2013 complaint at a further conference before the Commission.

[7] Following the last conciliation conference and after the actions in the Outcomes Report were concluded, Mr Steley indicated that he wished for his application to be referred to arbitration.

[8] Before this matter was referred back to the panel head for reallocation, I received correspondence from the CFA on 10 December 2019, advising that the CFA terminated Mr Steley’s membership of the CFA on the basis that the independent medical examination certified him as permanently unfit to perform the role of volunteer firefighter. The CFA requested a determination of the jurisdiction of the application as he is no longer a worker and no longer at risk of bullying.

[9] Neither party objected to my determination of the jurisdictional argument. The matter was then programmed for determination on the papers and the parties were directed to file submissions. This decision is made based on the material provided to date.

CFA submissions

[10] The CFA submit that at the conciliation conference of 16 July 2019, the parties reached agreement to settle the application. On 21 November 2019, at a further conciliation conference, Mr Steley stated that despite finalising the agreed outcomes of the earlier conference, that he wishes to pursue the application to hearing.

[11] On 2 December 2019, Mr Steley’s membership with the CFA was cancelled pursuant to s.23 of the Country Fire Authority Act (Vic) 1958, and as a result, he is no longer a volunteer, or a “worker” within the meaning of section 7 of the Work Health and Safety Act 2011 1.

[12] Due to his termination as a member, the CFA submits that as he is no longer a “worker” pursuant to ss. 789FC(1) and (2) of the Fair Work Act 2009 (the Act), and there is no risk that Mr Steley would be bullied at work pursuant to s.789FF(1)(b)(ii) of the Act. Given this, the Fair Work Commission’s (the Commission’s) jurisdiction under section 789FF of the Act to make orders to stop bullying has not been enlivened. 2

[13] In support of the submission, the CFA submitted a witness statement of a senior officer of the CFA which detailed the authority of the Chief Officer in requiring medical examinations, refusal to enrol a person as a member, and to cancel an enrolment of any officer or member of the brigade.

Mr Steley’s submission

[14] Mr Steley submitted numerous materials containing recorded telephone conversations, emails, personal handwritten records, copies of letters and doctor reports and screen shots of social media forums.

[15] Mr Steley did not directly make submissions in relation to the jurisdiction argument raised by the CFA.

Consideration

[16] The remedy available to the Commission in respect to a bullying application is an order to stop bullying of a worker. Relevantly, s.789FF of the Act provides the Commission with the discretion to issue an any order it considers appropriate “to prevent the worker from being bullied at work by the individual or a group of individuals,” 3 where it is satisfied that the worker has been bullied at work; and there is a risk that the worker will continue to be bullied at work.4

[17] It is not disputed, and I am satisfied that Mr Steley was a worker for the purposes of the Act at the time he lodged his application. The definition of worker has the same meaning as in the Work Health and Safety Act2011. 5 A volunteer is deemed a worker.

[18] The Commission may issue an order to stop bullying, that it considers appropriate, if an application is made under s.789FC, and if it is satisfied that:

i. The worker has been bullied at work by an individual or group of individuals; and

ii. There is a risk that the worker will continue to be bullied at work by the individual or group of individuals.

[19] An order is to have the effect of preventing future bullying behaviour at work by an individual or a group of individuals.

[20] Further the legislation permits the Commission to dismiss applications in certain circumstances. Section 789FE allows circumstances where the Commission can dismiss an application and it refers to another power under s.587. Relevantly, s.587 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.

(2) ...

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[21] Section 587 relevantly provides that the Commission may dismiss an application where there is no reasonable prospect of success, and it may dismiss a matter on application.

[22] The CFA has made application for the matter to be dismissed and submits that Mr Steley is no longer a volunteer of the CFA and therefore, not at risk of bullying at work. It follows that if there is no risk of bullying, the application has no prospect of success.

[23] The meaning and application of the phrase “no reasonable prospects of success” was considered by Deputy President Gostencnik in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank; Bianca Haines (ANZ) 6. Deputy President Gostencnik considered the authorities and the context of s.587 in similar circumstances where Mr Shaw was dismissed by ANZ since he made the application for an order to stop bullying. The Deputy President considered the implication of no reasonable prospect of success in the following terms:

“I would also observe that the answer to the question whether a particular application has no reasonable prospect of success in the context of s. 587 may differ depending on the time at which the question is asked. This, it seems to me, is evident from the word “has”. So it is that an application at its inception may have some reasonable prospect of success but, as circumstances change during the course of dealing with an application, those changed circumstances might have the result that an application which once had some reasonable prospect of success no longer has a reasonable prospect of success. 7

“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. 8

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. I see no reason in the circumstances why I should not exercise my discretion to dismiss Mr Shaw’s application given my finding and I do so.” 9

[24] Similarly, to ANZ, Mr Steley’s status as worker was terminated before the matter was determined. There is no risk that Mr Steley may be subject to bullying at work as his volunteer membership has been cancelled and he can no longer perform the duties of a CFA volunteer. Consequently, there is no reason I should not exercise my discretion to dismiss Mr Steley’s application against the CFA and all named individual Respondents.

Conclusion

[25] For the reasons outlined above I have decided to dismiss Mr Steley’s application on the basis that the application has no reasonable prospects of success. An order to that effect will be issued.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR718317>

 1   CFA submission 21 February 2020, paragraphs 6-8.

 2   Ibid, paragraphs 9-10.

 3   Fair Work Act 2009 (Cth) s.789FF(1).

 4   Ibid 789FF(1).

 5   Ibid 789FC(2).

 6   [2014] FWC 3408

 7   Ibid [11]

 8   Ibid [16]

 9   Ibid [17]