Dr Manu Chopra

[2020] FWC 3491

[2020] FWC 3491

FAIR WORK COMMISSION

DECISION

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

Dr Manu Chopra
(AB2019/728)

DEPUTY PRESIDENT CLANCY MELBOURNE, 2 JULY 2020

Application for an order to stop bullying – whether application has no reasonable prospects of success – application to dismiss granted.

[1] Dr Manu Chopra has made application for an order to prevent him from being bullied at work, alleging he was bullied in his capacity as a teacher at Al Siraat College (the ASC) by six staff members.

[2] Dr Chopra lodged the Form F72 – Application for an order to stop bullying (Form F72) with the Commission to commence this Application on 18 December 2019 (the Application).

[3] A Form F73 – Response from an employer/principal to an application for an order to stop bullying (Form F73) was filed on behalf of the ASC on 4 February 2020. The ASC objected to Dr Manu’s application on the basis that Dr Chopra did not meet the definition of “worker” and the alleged bullying behaviour was reasonable management action, carried out in a reasonable manner.

[4] The ASC outlined that Dr Chopra had been employed pursuant to a fixed term contract which expired on 19 December 2019, and as such he was no longer employed. It further asserted that to the extent that the investigations into Dr Chopra’s conduct were alleged to be bullying, they were based on genuine concerns held by the ASC in respect of Dr Chopra’s alleged coercion of students to make a complaint and his behaviour towards other staff members.

[5] The matter was listed for a Conference before Deputy President Gostencnik on 2 March 2020 at which the ASC pressed its jurisdictional objection.

[6] On 6 March 2020 an application to dismiss this matter was made on behalf of the ASC on the grounds that it had no reasonable prospects of success because there was no risk that Dr Chopra would continue to be bullied at work as Dr Chopra was no longer employed by the ASC. The ASC further asserted that there was no reasonable prospect of Dr Chopra returning to work.

[7] On 9 March 2020, Dr Chopra submitted a request that Deputy President Gostencnik recuse himself from hearing the matter. He did so on several bases but primarily because he foreshadowed arguing that the decision made by the Deputy President in Mitchell Shaw v Australian and New Zealand Banking Group Limited T/A ANZ Bank; Bianca Haines (Shaw), 1 is incorrect.

[8] I assumed carriage of the file and listed the matter for a Telephone Mention on 18 March 2020 at which I directed the ASC to lodge with the Commission and serve on Dr Chopra, an outline of submissions, witness statements and other documentary material upon which it intends to rely in support of its jurisdictional objections, by no later than 4:00pm on Wednesday, 8 April 2020.

[9] I further directed Dr Chopra to lodge with the Commission, and serve on the ASC, an outline of submissions, witness statements and other documentary material upon which he intends to rely in reply, by no later than 4:00pm on Wednesday, 20 May 2020.

[10] Both parties were subsequently granted a one day extension and after submitting his materials at 6:54pm on 21 May 2020, Dr Chopra submitted amendments on 22 May 2020.

[11] On 23 June 2020, Dr Chopra requested that I recuse myself from further dealing with this matter.

[12] Having regard to the material the parties have filed, I do not consider it necessary to conduct a hearing in relation to the matters I am required to determine and so will determine the application the ASC has made and the recusal application on the papers.

Legislative Framework

[13] Section 789FC of the Fair Work Act 2009 (the Act) sets out when a person can make an application to the Commission for an order to stop bullying:

“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.”

[14] Section 789FD of the Act sets out the requirements for a person to have been bullied at work:

“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.

[15] Section 789FF of the Act sets out when the Commission may make an order to stop bullying:

“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.”

Alternative Case Management and Recusal Application

[16] Dr Chopra has made three requests in relation to the case management of the Application:

•  That I, as National Practice Leader, appoint a Commissioner or a Member who has not yet decided any anti-bullying applications who can look at the case of Shaw and subsequent cases and his arguments with fresh eyes;

•  Through an application under s.615 and s.615A of the Act, that the President direct a Full Bench to deal with the Application; and

•  That the President refer the question of the correct interpretation of the provisions in Part 6-4B, and in particular s.789FF, for the opinion of the Federal Court pursuant to s.608 of the Act.

[17] I decline to grant the first request. A Member of the Commission is required to deal with each application before her or him on its terms. Further, as was stated by Justice Mason of the High Court (as he then was) in Re J.R.L.; Ex parte C.J.L. :

“It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party.

There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties.

But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way.” 2

[18] As to the second and third requests, it is self-evident these are not powers I can exercise.

[19] Dr Chopra has also made application that I recuse myself based on comments I made at the Telephone Mention on 18 March 2020. Dr Chopra argues that the procedure which I would use to determine the dismissal application made by the ASC pursuant to s.587 of the Act was incorrect. Dr Chopra further asserts that the issue before the Commission is not “a discrete jurisdictional question” and the Application requires evidence to be dealt with, and there must be a full hearing on the merits of the Application. Dr Chopra asserts that the comments I made may impact on my ability to conduct fair and impartial proceedings and might lead a “fair-minded lay observer to reasonably apprehend that [the Deputy President] might not bring an impartial mind to the resolution” of the Application.

[20] In Construction, Forestry, Maritime, Mining and Energy Union, 3 the Full Bench of the Commission distilled the principles applicable to an application for recusal based upon a reasonable apprehension of bias from the High Court authority of Ebner v Official Trustee in Bankruptcy (Ebner),4 as follows:

a) the governing principle is that a decision-maker is disqualified if a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question the decision-maker is required to decide; 5

b) deciding whether a decision-maker might not bring an impartial mind to the resolution of a question that had not yet been determined is a question of possibility (real and not remote), not one of probability or prediction; 6

c) the application of the apprehension of bias principle requires two steps: (1) identification of what it is said might lead the decision-maker to decide a case other than on its legal and factual merits; and (2) an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits; 7

d) only once these two steps are undertaken can the reasonableness of the asserted apprehension of bias be assessed; 8 and

e) it is not possible to state in a categorical form the circumstances in which a decision-maker may properly decline to sit, since relevant circumstances will vary. 9

[21] Applying the Ebner two-step approach, I note there are allegations made about comments I made at the Telephone Mention I conducted on 18 March 2020, which are relied upon by Dr Chopra as matters which might lead me to determine the application made by the ASC that this matter be dismissed, other than on its merits.

[22] The comments Dr Chopra appears to have identified are comments I made that referred to the application that has been made by the ASC as a discrete jurisdictional question that may not require evidence from the parties or a hearing 10 and further, my comments at PN61 of the transcript from the Telephone Mention held on 18 March 2020.

[23] In relation to the second Ebner step, Dr Chopra’s contention appears to be that the necessary “logical connection” is that because of these comments, the fair-minded lay observer would reasonably apprehend that I could not bring an impartial mind to the determination of the application that has been made by the ASC, on its merits.

[24] I am not persuaded there is a basis for concluding that a fair-minded, lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the questions I am required to determine in the application that has been made by the ASC that this matter be dismissed, due to the abovementioned comments referred to by Dr Chopra.

[25] The comments I made that Dr Chopra complains of were in the context of a discussion regarding s.789FF of the Act, which confers jurisdiction on the Commission to make an anti-bullying order if, and only if, it is satisfied that a worker has been bullied at work, and that there is a risk that the worker will continue to be bullied at work. In particular, the discussion arose in response to the proposition being advanced by the ASC that the Application be dismissed on the basis that it has no reasonable prospects of success, due to Dr Chopra no longer being a worker.

[26] Before issuing an order under s 789FF, the Commission must be satisfied both that a worker has been bullied at work by an individual or a group of individuals and as to the existence of a risk that a worker will continue to be bullied at work by the relevant individual or individuals. I simply referenced this latter requirement as constituting a discrete jurisdictional question and later characterised the application of the ASC before me in the following way:

“Well, the proposition being made in this application, Dr Chopra, is that you can’t fulfill or can’t satisfy the Commission as to the jurisdictional requirements that are required for your application to be successful. That is, there are two elements that you need to be able to establish to the satisfaction of the Commission.

Firstly, that you were subject to bullying at work, and that is a matter in contest. But secondly, that if you were and if the Commission was to be satisfied in relation to that, there’s a risk that you will continue to be bullied at work. The application seems to go to the point that you’re not currently employed by the college, nor are you likely to be in the future, as they have no intention of re-employing you and therefore that risk will never materialise, therefor you can’t succeed in your application.

It’s that second limb that they are putting forward that as things currently stand, that risk will not materialise. That’s the point that seems to lie behind their application on my initial reading of it.” 11

[27] Further, I indicated on a number of occasions during the Telephone Mention that I was simply making directions for the further conduct of the application and would be waiting on the submissions of the parties before making any decision.

[28] I am not persuaded by, and nor do I grant, Dr Chopra’s recusal application.

Submissions

[29] The ASC submits that Dr Chopra was employed under a fixed term contract that expired on 18 December 2019.

[30] A letter dated 30 August 2019 entitled “Offer of Employment” and signed by Dr Chopra on the same day has, in its Attachment 1, the following paragraph:

Period of employment

Employment will commence on 2 September 2019 and terminate on 19 December 2019. Continuing employment is subject to performance and conduct being satisfactory during the minimum employment period, defined as six months by the Fair Work Act 2009 (Cth.). Performance and conduct management processes do not apply during the minimum employment period.

Fixed term employment is offered to replace a teacher who resigned during the school year.”

[31] The ASC submits that Dr Chopra’s term of employment has expired. The ASC notes the cessation of the employment relationship on 19 December 2019 and asserts that Dr Chopra has not in any capacity been engaged by or asked by the ASC to perform work or provide any services for the ASC since that time. The ASC argues that on this basis, Dr Chopra ceased to be a “worker” within the meaning of s.789FC(2) of the Act.

[32] The ASC says that prior to the expiration of his contract, Dr Chopra was found to have engaged in serious misconduct, on the basis that he placed pressure on two students to provide evidence in his favour, in an investigation into complaints of bullying which he had made. The ASC says that Dr Chopra was invited to respond to these allegations, but he did not attend the meeting at which he could do so.

[33] The ASC therefore submits there is no risk that Dr Chopra will “continue to be bullied at work” in circumstances where he is no longer a worker for the ASC and is unlikely to be returned to work with the ASC in the future.

[34] The ASC further says that there is no organisational or operational need for Dr Chopra to perform the role he previously performed as a longstanding member of staff has taken over the chemistry classes for which Dr Chopra was specifically employed on the temporary basis to cover.

[35] The ASC also contends there only exists an obligation under s.103 of the Workplace Injury Rehabilitation and Compensation Act2013 (Vic) (WIRC Act) to provide, until the expiration of the employment obligation period, a worker with either suitable employment or pre-injury employment “to the extent it is reasonable to do so”. It asserts this is not a mandatory requirement and denies there is any obligation under the WIRC Act to return Dr Chopra to work given:

a) his employment contract has expired;

b) he was found to have engaged in serious misconduct;

c) there is no organisational need; and

d) no other suitable employment is available, taking into account the challenges the ASC faces during the COVID-19 pandemic.

[36] The ASC asserts that it is unlikely and purely speculative to consider that return to work would be ordered if any of Dr Chopra’s general protections applications were to be successful. However, the ASC notes that should such an order be made, Dr Chopra would be able to make another application for an order to stop bullying at that time.

[37] In his submissions, Dr Chopra outlined his understanding of how the Anti-Bullying jurisdiction provisions should be interpreted, asserting there currently exists an incentive to terminate the employment of a worker in order to avoid the jurisdiction.

[38] Dr Chopra does not consider s.789FF is a source of power from which the ability to dismiss for want of jurisdiction can arise. 12 He argues that if a person is a “worker” at the time of making the application, then he remains a “worker” for the purposes of s.789FF.

[39] Dr Chopra asserted that the decision in Shaw is incorrect but notes it has been upheld by two Full Bench decisions 13. Dr Chopra further asserts that I was incorrect in applying Shaw in Sonja Gasser.14 He says he has not been able to find an application the Commission has not dismissed where the employee was terminated after filing his or her application.

 [40]  Dr Chopra’s submissions raise numerous objections to the ASC’s application, however I observe his main argument regards the application in Shaw by Deputy President Gostencnik of the High Court’s interpretation of “no reasonable prospect” in the context of s.31A of the Federal Court of Australia Act (1976) in Spencer v The Commonwealth of Australia (Spencer). 15

[41] Dr Chopra raises paragraphs [59] and [60] of Spencer in this regard:

“[59] In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like “clearly”, “manifestly” or “obviously”) as “frivolous”, “untenable”, “groundless” or “faulty”. But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word “reasonable”, in the phrase “no reasonable prospect”, be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a “frivolous”, “untenable”, “groundless” or “faulty” claim.

[60] Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is “no reasonable prospect” of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to “no reasonable prospect” can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase “just and equitable” when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.”

[42] Dr Chopra submits that the following statement made by Deputy President Gostencnik in Shaw is incorrect:

“In Spencer the High Court was saying that one should not make the mistake of only concluding that a proceeding has no reasonable prospect of success if it is frivolous, untenable, groundless or faulty and that full expression should be given to that phrase. It seems to me that the observations in Spencer are apt to apply to the construction and application of the phrase “has no reasonable prospect of success” as it appears in s. 587 of the Act.” 16

[43] Dr Chopra submits that the observations in Spencer are not apt to apply to the construction and application of the phrase “has no reasonable prospects of success” as it appears in s.587 of the Act. Dr Chopra submits this is because the High Court in Spencer was considering the construction of s.31A which had been introduced into the Federal Court of Australia Act (1976) by the Migration Litigation Reform Act (2005). The phrase “no reasonable prospect of successfully prosecuting the proceeding” appeared in s.31A(2) and Dr Chopra submits that it is critically important to bear in mind that it was accompanied by sub-section 31A(3), which provides:

“(3) For the purposes of this section, a defence or a proceeding or a part of a proceeding need not be:

(a) hopeless; or

(b) bound to fail;

for it to have no reasonable prospect of success.”

[44] Dr Chopra submits that the entire context of the High Court’s discussion on the phrase “no reasonable prospect of success” was wrapped up in the combined effect of s.31A(2) and s.31A(3) and this point was missed in Shaw. Dr Chopra relies on Spencer at [52] to [56]:

“[52] Second, effect must be given to the negative admonition in sub-s (3) that a defence, a proceeding, or a part of a proceeding may be found to have no reasonable prospect of successful prosecution even if it cannot be said that it is “hopeless” or “bound to fail”. It will be necessary to examine further the notion of “no reasonable prospect”. But before undertaking that task, it is important to begin by recognising that the combined effect of sub-ss (2) and (3) is that the enquiry required in this case is whether there is a “reasonable” prospect of prosecuting the proceeding, not an enquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail.

[53] In this respect, s 31A departs radically from the basis upon which earlier forms of provision permitting the entry of summary judgment have been understood and administered. Those earlier provisions were understood as requiring formation of a certain and concluded determination that a proceeding would necessarily fail. That this was the basis of earlier decisions may be illustrated by reference to two decisions of this Court often cited in connection with questions of summary judgment: Dey v Victorian Railways Commissioners and General Steel Industries Inc v Commissioner for Railways (NSW).

[54] In Dey, the defendants moved for summary judgment on the grounds that the action was frivolous, vexatious and an abuse of process. In a passage often later cited, Dixon J said that “[a] case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury”. What Dixon J meant by “very clear” was identified by his observation that “once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process” (emphasis added). And there would be a “real question” unless the defendant could “show that it was so certain that [the question] must be answered in the [defendant’s] favour that it would amount to an abuse of the process of the court to allow the action to go forward for determination according to the appointed modes of procedure” (emphasis added). The test identified by Dixon J in Dey can thus be seen to be a test requiring certain demonstration of the outcome of the litigation, not an assessment of the prospect of its success.

[55] In General Steel Industries, Barwick CJ pointed out that previous decisions about summary termination of actions on the motion of a defendant had been given in cases in which the so-called “inherent” jurisdiction of a court to protect itself and its processes from abuse had been invoked, and in cases where the defendant had relied upon a particular rule of court permitting the court to strike out pleadings or dismiss an action on it being shown that a pleading “does not disclose a reasonable cause of action” or the action “being shown by the pleadings to be frivolous or vexatious”. The material available to the court might differ, depending upon which power was invoked, but all the cases emphasised the need for “exceptional caution” in exercising a power to dismiss an action summarily. As Barwick CJ also pointed out in General Steel Industries, the test to be applied was expressed in many different ways, but in the end amounted to different ways of saying “that the case of the plaintiff is so clearly untenable that it cannot possibly succeed” (emphasis added). As that formulation shows, the test to be applied was one of demonstrated certainty of outcome.

[56] Because s 31A(3) provides that certainty of failure (“hopeless” or “bound to fail”) need not be demonstrated in order to show that a plaintiff has no reasonable prospect of prosecuting an action, it is evident that s 31A is to be understood as requiring a different enquiry from that which had to be made under earlier procedural regimes. It follows, of course, that it is dangerous to seek to elucidate the meaning of the statutory expression “no reasonable prospect of successfully prosecuting the proceeding” by reference to what is said in those earlier cases.”

(citations omitted).

[45] Dr Chopra submits the above passages suggest Hayne, Crennan, Kiefel and Bell JJ were emphasising a need to adopt a different perspective in interpreting s.31A(2) because of the presence of s.31A(3). He says s.587(1)(c) of the Act does not have the equivalent of s.31A(3) and submits this is the weakness in the analysis in Shaw. Dr Chopra submits that because s.587 of the Act does not have the equivalent of s.31A(3), s.587 need not “depart radically from the basis upon which earlier forms of provision permitting the entry of summary judgment have been understood and administered”. Dr Chopra submits that the combined effect of the phrase “no reasonable prospects of success” along with “reasonable prospect of success need not be” “hopeless” or “bound to fail’ is why a different standard might be used to grant summary dismissal. This standard need not be a “certain and concluded” determination that the proceeding must fail.

[46] Dr Chopra submits that, for the purposes of s.587, the conclusions in Spencer with respect to s.31A which hint at a broadening and lowering of the bar to summary dismissal cannot be reapplied. He asserts that Shaw and the Full Bench decisions of Obatoki v Mallee Track Health Community Services and Others (Obatoki) 17and Atkinson v Killarney Properties Pty Ltd T/A Perm-A-Pleat Schoolwear and Others (Atkinson)18 were incorrect on five fronts:

•  ignoring the absence of the equivalent of s.31A(3) of the Federal Court Act in s.587(1)(c) of the Act;

•  applying the wrong test for summary dismissal;

•  interpreting the word “has” in s.587(1)(c);

•  concluding there is no prejudice to the applicant if he brings an anti-bullying application months and years later if he is reinstated; and

•  ignoring that the Parliament contemplated that an anti-bullying application could be heard for ex-employees.

[47] In his amended Submissions, Dr Chopra also refers to the Full Bench statement in Baker v Salva Resources Pty Ltd (Baker) 19 that the “concepts within s.611(2)(b) ‘should have been reasonably apparent’ and ‘had no reasonable prospect of success’ have been well traversed”, and that “a conclusion that an application ‘had no reasonable prospects of success’ should only be reached with extreme caution in circumstances where the application is manifestly untenable or groundless or so lacking in merit as to be not reasonably arguable”. (citations omitted).

[48] Dr Chopra noted that in Baker, the Full Bench stated “we are not satisfied that it should have been reasonably apparent to Ms Baker that her appeal had no reasonable prospect of success. In those circumstances, it is not necessary to seek submissions from Ms Baker”. 20

[49] Dr Chopra submits that Baker illustrates the correct and the most expedient procedure to be adopted under the “no reasonable prospects of success” standard. He submits that the onus is on the party which brings an application under this standard and only if it can make an arguable case under this standard would submissions even be needed from the other party. This would decrease costs and resources.

[50] Dr Chopra submits that any factual finding as to whether an employee might be reinstated should be construed in favour of the applicant at the jurisdictional objection phase.

[51] Dr Chopra submits that it will be self-evident that his Application must not be summarily dismissed once:

•  the correct interpretation of s.587(1)(c) is applied to s.789FF(1)(b), that is, the correct test that the onus is on the ASC to prove that the application is manifestly untenable or there is no material fact in dispute is applied; and

•  the matter is considered at its highest with factual disputes assumed to be in his favour; and

•  consideration is given to the prejudice he will suffer if the application is summarily dismissed; and

•  consideration is given to the Objects of introducing Part 6-4B , the Objects of the Act and the dictates of s.577 and s.578 of the Act.

[52] Dr Chopra submits that upon receiving an application, the Commission should make a finding under s.789FF and if there is no finding of bullying, the matter ends. If there is a finding of bullying, only then should s.789FF(1)(b)(ii) be assessed. Alternatively, Dr Chopra submits that only after a substantive hearing of the matter should the Commission consider whether the second limb of s.789FF(1)(b) is met. He submits that it is incumbent upon the ASC to demonstrate that there is no risk of him returning to work. He further submits that both the requirement for the ASC to facilitate a return to work under the worker’s compensation claim, and the General Protections Application which requests reinstatement as remedy, mean that the ASC cannot do so in this case.

[53] Dr Chopra further contends that the questions of law and fact that remain preclude a determination at this early stage. He cites the question of whether his employment was indeed of fixed term or whether he was promised ongoing employment as an example that requires evidence and cross-examination of witnesses.

[54] Dr Chopra also submits that Parliament contemplated that an anti-bullying application by ex-employees could be heard on the basis that the Revised Explanatory Memorandum to the Fair Work Amendment Bill 2013 notes that the Commission does not have the power to order reinstatement. He submits this indicates applications by dismissed employees were contemplated.

Consideration

[55] The central proposition advanced by Dr Chopra in his critique of Shaw appears to be as follows:

•  Under s.31A(3), which was introduced into the Federal Court of Australia Act (1976) by the Migration Litigation Reform Act (2005) (Cth), a proceeding, or a part of a proceeding could be found to have no reasonable prospect of successful prosecution even if it could not be said that it was “hopeless” or “bound to fail”.

•  For this reason, there was a departure by the High Court in Spencer from the basis upon which earlier forms of provisions permitting the entry of summary judgment had been understood and administered. That is, there was a departure from the standard that there be a “certain and concluded” determination that the proceeding would necessarily fail.

•  Spencer may have had the result of introducing a different standard to be met when seeking to have an application dismissed on the basis that it has no reasonable prospect of success, however the principles enunciated by the High Court in Spencer were outlined in the context of underlying legislative provisions that are different in effect to s.587 of the Act.

•  As such, Deputy President Gostencnik erred in drawing on principles enunciated in Spencer when determining Shaw and should have had regard to the basis upon which earlier forms of provision permitting the entry of summary judgment have been understood and administered, i.e. a “certain and concluded” determination that that the proceeding would necessarily fail.

[56] It was stated in Shaw, amongst other things,that a conclusion that an application has no reasonable prospect 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.  21

[57] That this is the view of Deputy President Gostencnik was subsequently confirmed in his decision in Willis v Capital Radiology Pty Ltd T/A Capital Radiology; Ms Peita Carroll; Ms Marie Gibson; Mr Dominik Kucera (Willis). 22

[58] As regards Dr Chopra’s criticism of Obatoki, I observe that in that case the Full Bench had noted that there was no evidence before the Commission indicating that there would be a risk that the Appellant would continue to be bullied at work once he ceased to be engaged as worker.

[59] In Atkinson, I note the Full Bench determined that the fact the Applicant had an unfinished general protections court application in respect of the termination of his employment at the time the first instance decision maker made his decision to dismiss the anti-bullying application, did not preclude the first instance decision maker from concluding that the requirement that there be a risk that the Applicant would continue to be bullied at work was not satisfied.

[60] More recently in Bibawi v Stepping Stone Clubhouse Inc t/a Stepping Stone & Others, 23 the Full Bench, when dealing with a dispute as to whether an Applicant was a “worker”, stated:

“[17] Section 587(1)(a) of the FW Act empowers the Commission to dismiss an application where it has not been made in accordance with this Act, and s 587(1)(c) similarly empowers dismissal where an application has no reasonable prospects of success. This power may be exercised summarily - that is, an application may be dismissed pursuant to s 587(1) prior to a full hearing being conducted. Full Bench decisions such as Townsley v State of Victoria (Department of Education & Early Childhood Development) and Toma v Workforce Variable Pty Ltd have emphasised that the power to dismiss applications summarily should be exercised cautiously and sparingly, consistent with the principle stated by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW):

“… the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion… the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action … is clearly demonstrated.” (references omitted)

[61] As outlined above, the relevant remedy in respect of applications for an order to stop bullying is an order which the Commission considers appropriate “to prevent the worker from being bullied at work by the individual or group” 24 The power to make an order to stop bullying is discretionary and only exercisable if the Commission is satisfied that:

•  the worker has been bullied at work by an individual or a group of individuals; and

•  there is a risk that the worker will continue to be bullied at work by the individual or group. 25 (my emphasis)

[62] Thus, before issuing an order under s.789FF, the Commission must be satisfied there is a risk that the worker will continue to be bullied at work. If the Commission is not satisfied there is a risk that the worker will continue to be bullied at work by the individual or group, the application must fail.

[63] Therefore, in this case, even if I was satisfied Dr Chopra has been bullied at work by an individual or group of individuals, I must also be satisfied there is a risk that Dr Chopra will continue to be bullied at work by the individual or group of individuals and that it is appropriate to make an order to prevent him from being bullied at work. Absent the existence of a risk of continued bullying at work by the individual or group, there is an absence of power to make an order. 26

[64] Dr Chopra’s employment contract was for a fixed term and it expired on 19 December 2020. He is no longer at work for the ASC. The ASC has no duties for Dr Chopra to perform and further, it has no intention of re-hiring him as it believes he engaged in serious misconduct. There have been no proceedings initiated in relation to the WIRC Act. There is no general protections court application on foot. In these circumstances it cannot be concluded there is currently a risk Dr Chopra will continue to be bullied at work.

[65] Dr Chopra may make a general protections court application in the future, that application may be listed for hearing some time in the future and may subsequent to that, at a later time, be the subject of a determination by the Federal Court of the Federal Circuit Court. Depending on the outcome, there may or may not be an order for reinstatement. It is clear that the prospect of Dr Chopra being at work for the ASC, and at risk of continuing bullying, is currently hypothetical. I am not persuaded that this position will change in the foreseeable future.

[66] I am asked to determine the ASC’s application that the Commission dismiss Dr Chopra’s anti-bullying application on the basis that it has no reasonable prospects of success. The material before clearly establishes that Dr Chopra is not and will not for the foreseeable future be at work for the ASC. As such, I consider I am able to reach a definite and certain conclusion that Dr Chopra cannot currently succeed in establishing there is a risk that he will continue to be bullied at work. On the material before me therefore, I am satisfied the pre-requisites for the making of an order pursuant to s.789FF(1) of the Act cannot be met and that the Application has no reasonable prospects of success.

[67] Section 587 of the 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.”

[68] The Explanatory Memorandum to the Fair Work Bill 2008 outlined the following in relation to what would become s.587 of the Act:

“Clause 587 – Dismissing applications

2271. Subclause 587 allows FWA to dismiss, on its own initiative or on application, an application which is not made in accordance with the Bill, or that is frivolous, vexatious or has no reasonable prospects of success.

2272. However FWA may not dismiss an application to deal with a dispute involving a dismissal under clause 365 or clause 773 on the grounds that the application is frivolous, vexatious or has no reasonable prospects of success.

2273. This provision is not intended to limit FWA’s power to dismiss applications for other reasons, such as failure to meet jurisdictional requirements.”

[69] It is clear, therefore, that s.587 of the Act vests in the Commission a broad discretionary power to dismiss an application before it. I am satisfied that Dr Chopra’s application for an order under s.789FF has no reasonable prospects of success. I have decided it is appropriate that I should exercise my discretion and dismiss Dr Chopra’s application. In reaching this decision, I have had regard to the following:

a) The Explanatory Memorandum to the Fair Work Amendment Bill 2013, when referring to what would become Part 6-4B of the Act, outlines repeatedly the imperative that bullying matters be responded to and dealt with quickly; 27

b) Section 789FE of the Act reflects this imperative by requiring the Commission to start dealing with an application within 14 days after an application is made;

c) The Explanatory Memorandum also outlines that the focus of the anti-bullying jurisdiction is on resolving the matter in question and enabling normal working relationships to resume, i.e. it is a forward-looking jurisdiction; 28

d) It was the intention of Parliament that Part 6-4B of the Act provide a mechanism for the quick and inexpensive resolution of anti-bullying matters 29 and this weighs against proceedings that put the parties to unnecessary expense and/or adjournments of an indeterminate duration;

e) From this imperative for an early and quick response so that normal working relationships can resume, it can be concluded that an anti-bullying application should be resolved as expeditiously as possible, with expense to the parties kept to a minimum;

f) If the Commission was to proceed to hear and determine the question of whether Dr Chopra has been bullied at work now, despite there currently being no risk that he will continue to be bullied at work, the parties would be put to unnecessary effort and expense for the same conclusion in a few months’ time. It would also be the case that the parties would be put to unnecessary effort and expense if Dr Chopra is not ultimately successful in securing an order for reinstatement through a general protections court application;

g) In the alternative, a prolonged adjournment of an anti-bullying application until such time as it might be established that there is a risk a worker will continue to be bullied at work serves no apparent purpose and would not be consistent with the Parliament’s intention that the jurisdiction provide a quick response. Therefore, such an adjournment should only sparingly be entertained;

h) Should Dr Chopra eventually succeed in securing an order for reinstatement, if indeed he ends up pursuing this as a remedy, 30 he will not be barred from making another anti-bullying application if he considers there is a risk of continued bullying at that time; and

i) It was specifically noted in the Explanatory Memorandum that the Commission cannot order reinstatement as part of a remedy to an anti-bullying application, 31 which reflects that only a worker may make an anti-bullying application.

Conclusion

[70] On the material before me, I consider the pre-requisites for the making of any orders pursuant to s.789FF(1) of the Act cannot presently be met because there is no risk that Dr Chopra will continue to be bullied at work. I am persuaded that the application Dr Chopra has made has no reasonable prospects of success and I am satisfied it is appropriate in the circumstances of this case to exercise my discretion pursuant to s.587(1)(c) of the Act to dismiss Dr Chopra’s anti-bullying application.

[71] Should Dr Chopra eventually secure a return to the work with the ASC and at that point still hold the concern that there is a risk of continued bullying at work, he will be free to make another anti-bullying application. Indeed, there is no bar to him making a fresh application and nor will he be prevented from relying on the allegations he has made in this anti-bullying application to make good the requirement in s.789FF(1)(b)(i) of the Act. If Dr Chopra is concerned that the memories of his witnesses might fade or that critical witnesses might leave the workplace, it is open to him to prepare his witness evidence now.

[72] An order dismissing the anti-bullying application of Dr Chopra will be issued along with this decision.

DEPUTY PRESIDENT

Final written submissions:

Al Siraat College, 9 April 2020.
Dr M Chopra, 22 May 2020

Printed by authority of the Commonwealth Government Printer

<PR720706>

 1   [2014] FWC 3408.

 2 (1986) 161 CLR 342 at 352.

 3   [2019] FWCFB 214 at [12].

 4 (2000) 205 CLR 337.

 5 Ibid at [6].

 6 Ibid at [7].

 7 Ibid at [8].

 8 Ibid at [8].

 9   Ibid at [21]; see also Livesey v NSW Bar Association [1983] HCA 17, 151 CLR 288 at 299: “…each case must be determined by reference to its particular circumstances”.

 10   Dr Chopra’s email dated 24 June 2020 referencing Transcript PN 50-55 from the Telephone Mention on 18 March 2020.

 11   Transcript of Telephone Mention on 18 March 2020 at PN 61-63.

 12   Paragraph 14, Applicant’s Submissions.

 13   Obatoki v Mallee Track Health Community Services and Others [2015] FWCFB 1661; Atkinson v Killarney Properties Pty Ltd T/A Perm-A-Pleat Schoolwear and Others [2015] FWCFB 6503.

 14   [2020] FWC 1451.

 15 (2010) 241 CLR 118.

 16   [2014] FWC 3408 at [10].

 17   [2015] FWCFB 1661.

 18   [2015] FWCFB 6503.

 19   [2011] FWAFB 4014 at [10].

 20 Ibid at [15].

 21   [2014] FWC 3408 at [8].

 22   [2016] FWC 716 at [7].

 23   [2019] FWCFB 1314.

 24   Fair Work Act 2009 (Cth) s.789FF.

 25   Fair Work Act 2009 (Cth) ss.789FF(1)(b)(i) and (ii).

 26   Willis v Capital Radiology Pty Ltd T/A Capital Radiology; Ms Peita Carroll; Ms Marie Gibson; Mr Dominik Kucera (Willis) [2016] FWC 716 at [15].

 27   Explanatory Memorandum to the Fair Work Amendment Bill 2013 at page 9.

 28   Ibid at page 30.

 29   Ibid at page 9.

 30   Paragraph 114, Applicant’s Submissions.

 31   Ibid at page 30.