Dr Kerryn Chatham

[2018] FWC 1360

[2018] FWC 1360

FAIR WORK COMMISSION

DECISION

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

Dr Kerryn Chatham
(AB2017/618)

COMMISSIONER SIMPSON BRISBANE, 8 MARCH 2018

Application for an FWC order to stop bullying.

[1] On 23 November 2017 Dr Kerryn Chatham (the Applicant) made an application for an order to stop bullying in accordance with s.789FC of the Fair Work Act 2009. The Applicant identified her Employer as the Northern Territory Department of Health, however her Employer advised the proper identity of the Employer was the Commissioner for Public Employment Northern Territory Government (the Employer).

[2] The Application named three persons against whom bullying is alleged.

[3] By way of background, prior to making the s.789FC application, on 8 October 2017 the Applicant filed matter number C2017/5530, an application in accordance with s.372 to deal with a general protections non-dismissal dispute against her Employer.

[4] The general protections application in brief alleged contravention on the basis that the Applicant had been removed from her role as Remote Medical Practitioner in the community of Wadeye in the Northern Territory because of her involvement in notifying appropriate authorities of inappropriate conduct on the part of a co-worker, and complaining to her Employer about the conduct of this co-worker. The general protections application raised a number of allegations.

[5] The s.789FC application raised a number of separate allegations of bullying against the three named persons, one of which is the co-worker whose conduct had been the subject the Applicant’s complaints that the Applicant asserts led to adverse action being taken against her.

[6] Both matters were listed concurrently for private conference before me on 8 December 2017. In the course of the conference it became apparent that the employment relationship had ended.

[7] The conference on 8 December was not successful at resolving either application despite attempts to do so. The Employer raised a jurisdictional objection to the Commission proceeding to deal with the s.789FC application in circumstances where the Applicant was no longer employed. I invited the parties to file written submissions in regards to the objection.

[8] In the course of the conference the status of the general protections application was also discussed given that the since the time of filing the Applicant had ceased to be employed.

[9] Subsequent to the conference, on 15 December 2017 the Applicant filed a Form F8 general protections application involving dismissal.

[10] Written submissions on the jurisdictional objection concerning the s.789FC matter were received in chambers from the Applicant and the Employer. The general protections and

s.789FC matter were listed for a further conference on 6 March 2018.

[11] After discussion in conference I was satisfied that all reasonable attempts to resolve the general protections matter had been unsuccessful and neither party to the general protections application took issue with the Commission proceedings to issue a certificate in accordance with s.368. I decided to amend matter number C2017/5530 such that it was an application under s.365 to reflect the fact of the employment having ended and the Applicant’s assertion that she was dismissed in contravention of general protections. This decision was described in the certificate issued.

[12] Turning to the matter that is the subject of this decision the Employer submits the FWC should dismiss the s.789FC application pursuant to s.587(3)(b) of the FW Act on the grounds set out in s.587(1)(c) that it has no reasonable prospect of success.

[13] The Employer relies on s.789FF(1)(b)(ii), the effect of which requires that before making an order the FWC must be satisfied that there is a risk that the worker will continue to be bullied at work by the individual or group.

[14] The Employer relies on the FWC decision in Shaw v Australia & New Zealand Banking Group Limited 1and specifically paragraphs [15] to [17] of that decision. The Employer referred to a number of other FWC decisions which it said a prospective risk of being bullied does not enliven jurisdiction.

[15] It is common ground that the employment ended on 24 November 2017. At the time of the 8 December 2017 conference the Applicant was no longer a resident of the Northern Territory and was residing in the State of Victoria. At the further conference on 6 March 2018 the Applicant advised she continued to reside in Victoria. At the conclusion of the second conference on 6 March 2018 the Applicant and Mr Hathaway from the Employer indicated agreement to be deciding the jurisdictional objection on the written material provided.

[16] In the Applicant’s submission filed on 29 December 2017 the Applicant said if the Department did not send her back to Wadeye, she would be returning to the community of Wadeye as a General Practitioner in private practice. The Applicant submitted in those circumstances she would be working with one of the named persons directly and indirectly as they would be treating the same patients.

[17] It is apparent between the time of making the written submission on 29 December 2018 and the second conference 2018 the Applicant has not returned to work in Wadeye. After the conference the Applicant sent further email correspondence to my chambers copied to the Employer adding to her earlier written submission that she had made some enquiries regarding financing and a location and had made progress towards securing a building for a private practice. The Applicant said that she still hoped to return to Wadeye with the Employer, but the option of returning in private practice was certainly viable.

[18] Similarly to the facts in the matter of Shaw v Australia and New Zealand Banking Group Limited there is no dispute that the employment relationship had ended, and further the applicant has made an application under the general protections under s.365. 2 I express no view as to the merits of the general protections application.

[19] Paragraphs [15] to [17] of the decision in Shaw v Australia and New Zealand Banking Group Limited read as follows;

“[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. 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. An order dismissing Mr Shaw’s application has been made separately in PR550413. I would observe that, if as a consequence of Mr Shaw’s general protections application or any other remedy that he seeks, he is reinstated to his former position or another position with ANZ and at that point he has concerns about a risk of being bullied at work, it seems to me, and the ANZ seem to accept that he will be at liberty to make a fresh application at that time. That he has made this application and that it has been dismissed will not operate as a bar to any future application if the jurisdictional facts can be established in relation to that application.”

[20] Similarly to the circumstances in Shaw the Applicant has taken steps in relation to her dismissal that may result in reinstatement at some point in the future however that is speculative and uncertain, as is the prospect of the Applicant making a final decision to return to the Wadeye at some point in the future to work in private practice. I say that because of the length of time the Applicant has not resided in the Northern Territory and the Applicant’s own language in describing the prospect of returning to work in private practice at Wadeye. The Applicant has said she has “made some enquiries”, and that the “option” is “viable”.

[21] As things stand at the current point in time it seems clear that there cannot be a risk that the Applicant will continue to be bullied at work by an individual or group of individuals identified in his application because the Applicant is no longer employed by the Employer and is no longer at work. Therefore I do not have power to make an order to stop bullying and as a consequence I am satisfied that the application has no reasonable prospects of success.

[22] I have given consideration to the question of whether the matter could be held in abeyance however I do not think it is appropriate to adjourn the application pending the possibility of an outcome in the general protections matter that may enliven the possibility of the Applicant being bullied at work at some point in the future, or alternatively the Applicant successfully negotiating arrangements that results in her making a decision to return to Wadeye to work in private practice that may cause her to have contact with persons named in this application. The Full Bench decision in Obatoki v Mallee Track Health & Community Services & Senior and Others 3 decided after Shaw affirmed the requirement that the two limbs of s.789FF(1) have to be satisfied in order for power to exist to make orders. On that basis I have decided to exercise my discretion to dismiss the application and I do so.

[23] As was observed in the decisions in Shaw and Obatoki there is no bar to the Applicant making a future s.789FC application if the jurisdictional facts can be established in relation to such an application upon either of her being reinstated to her former position at Wadeye or deciding to return of her own volition.

COMMISSIONER

<PR600936>

 1   [2014] FWC 3408

 2   [2014] FWC 3408 para [7]

 3   [2015] FWCFB 1661 at [21]

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