Dr Say Teong Ng

[2019] FWC 7279

[2019] FWC 7279

FAIR WORK COMMISSION

DECISION

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

Dr Say Teong Ng
(AB2019/104)

COMMISSIONER HAMPTON ADELAIDE, 6 NOVEMBER 2019

Application for an FWC order to stop bullying – applicant dismissed from employment – application by respondent employer for stop-bullying application to be dismissed under s.587(1)(c) of the FW Act – whether reasonable prospects of success given statutory requirements for an order to be made given the future risk import of s.789FF(1)(b) – factors for Commission to consider discussed – matter originally stayed pending developments in unfair dismissal application – unfair dismissal application dismissed on the basis of a settlement – dispute over terms – whether future prospect of return to workplace evident – any return to workplace now speculative given developments – no reasonably foreseeable future risk – satisfied that no reasonable prospects of success demonstrated – matter of discretion arises – application dismissed.

1. What this Decision is about

[1] Dr Say Ng has made an application for a stop-bullying order (the stop-bullying application) under s.789FC of the Fair Work Act 2009 (FW Act), lodged on 5 March 2019. The application contends that a number of individuals engaged by the Commonwealth Science Industrial and Research Organisation (CSIRO) have behaved unreasonably so as to constitute workplace bullying. Those allegations are disputed. The CSIRO and the individuals named in the application are collectively the respondent parties in the stop-bullying matter.

[2] On 19 March 2019, Dr Ng’s employment with the CSIRO was terminated. Following this termination the CSIRO sought to have Dr Ng’s stop-bullying application dismissed by the Commission under s.587 of the FW Act (the First CSIRO Application). The CSIRO contended that the stop-bullying application should be dismissed as it had no reasonable prospect of succeeding as Dr Ng was no longer an employee who could be subject to any further risk of alleged bullying. 1 The CSIRO’s s.587 application was opposed by Dr Ng who, having lodged an unfair dismissal application to challenge the termination of his employment, contended that the stop-bullying application should be held in abeyance pending the outcome of his unfair dismissal application.

[3] In June 2019, I determined 2 that the stop-bullying application would be held in abeyance pending the outcome of the unfair dismissal application or other relevant developments. Without detracting from the comprehensive consideration set out in the June Decision, I found that as Dr Ng was seeking reinstatement through his unfair dismissal application and that matter had not been subject to any substantive proceedings, I was not satisfied that there were no reasonable prospects of success for the stop-bullying application based upon the termination. This Decision should be read in conjunction with the June Decision.

[4] As part of the June Decision I indicated to the parties that should circumstances surrounding the unfair dismissal application change, a request could be made to, in effect, further consider the CSIRO’s s.587 application.

[5] On 20 September 2019, Dr Ng’s application for an unfair dismissal remedy was dismissed by another arm of the Commission. 3 Deputy President Clancy, in that decision, found that a binding agreement to settle the unfair dismissal matter existed between the parties.4 Given the existence of a binding settlement, the Deputy President exercised the Commission’s power under s.587 of the FW Act to dismiss the unfair dismissal application on the basis that it had no reasonable prospect of success. That decision has not been challenged by way of appeal and during these proceedings Dr Ng confirmed that he was content with the outcome of that decision.

[6] On 25 September 2019, the CSIRO renewed its request that Dr Ng’s stop-bullying application be dismissed under s.587 of the FW Act on the basis that it has no reasonable prospects of success (the Second CSIRO Application).

[7] I caused my Chambers to issue an email to Dr Ng seeking a written response to the Second CSIRO Application. This email also indicated that I would determine the application on the basis of materials to be provided, unless either party advised they wished to be heard on the matter.

[8] Dr Ng subsequently provided written materials in opposition to the Second CSIRO Application. He contends that his stop-bullying application should remain in abeyance until certain conditions are met. Within his written response, Dr Ng also expressed that he wished to be heard on the matter. Consequently, I conducted a hearing, by video link, on 24 October 2019 and reserved my decision.

[9] This Decision deals with the Second CSIRO Application.

2. The unfair dismissal application decision

[10] As outlined above, on 20 September 2019 Deputy President Clancy dismissed Dr Ng’s unfair dismissal application. The Deputy President found that the parties had reached a binding settlement to resolve the unfair dismissal application in the following terms:

“[83] I am therefore satisfied that Dr Ng and the CSIRO reached agreement having regard to the intention disclosed by the language Mr Giannopoulos and Mr Jolley employed in their email correspondence on 14 and 17 June 2019. The agreement reached was:

•  The CSIRO would rescind the dismissal and allow Dr Ng to retire from his employment;

•  The CSIRO would provide Dr Ng with a Statement of Service, outlining his period of service, position, duties and confirming the retirement;

•  The parties would enter into the standard Fair Work Commission Terms of Settlement.” 5

[11] The consequences of that finding were made clear by the Deputy President:

“[89] As I have found that the parties reached agreement and I am satisfied that the agreement was of the first or second type discussed in Masters v Cameron, I am persuaded that I should exercise my power under s.587(1)(c) of the Act to dismiss the application on the basis that it has no reasonable prospects of success. The settlement agreement that was made is a complete answer to Dr Ng’s claim that he was unfairly dismissed.” 6

[12] An Order 7 dismissing the unfair dismissal application was also issued.

[13] I add that a dispute about the implementation of those terms has unfolded and both parties provided correspondence between them which illustrated their respective views of the settlement and the necessary steps each party sought be taken.

3. The cases advanced by the parties

3.1 CSIRO

[14] CSIRO contends 8 that the stop-bullying application should be dismissed on the following grounds:

•  Dr Ng’s unfair dismissal application was dismissed by Deputy President Clancy and, at the time of their submission, was not subject to appeal;

•  The circumstances in which Dr Ng may now return to work at the CSIRO are “merely speculative”;

•  The stop-bullying application has no prospects of success as without Dr Ng being a worker in the relevant workplace there is no basis upon which any remedy could be considered under s.789FF of the FW Act;

•  Dismissing the stop-bullying application will not prejudice Dr Ng as he would be entitled to make a new application in the very unlikely event that he does return to work at the CSIRO; and

•  The further delay of the stop-bullying application would be prejudicial to the individuals named in that application.

[15] The CSIRO also reserved its right to advance further submissions in relation to a “jurisdictional” objection, that the alleged conduct does not constitute bullying for the purpose of s.789FD, in the event that the stop-bullying application is not dismissed by the Commission.

[16] As the Second CSIRO Application is jurisdictional in nature, no additional arguments were advanced by the individuals named in the stop-bullying application.

[17] During the hearing of this matter, the CSIRO further contended that any dispute about the terms of the settlement in the unfair dismissal matter was not an issue for the Commission as presently constituted, or for the Commission more generally; it had complied with the terms; and in any event, Dr Ng was no longer an employee of the CSIRO. In that regard, the CSIRO relied upon an application made by Dr Ng to access his superannuation funds, made after the settlement had been confirmed by the Commission, as an indication that he had accepted his retirement, and had, in effect, retired at that point.

3.2 Dr Ng

[18] Dr Ng contends that his stop-bullying application should remain in abeyance, and not be dismissed, on the following basis:

•  While Deputy President Clancy found a binding settlement exists between the parties, the CSIRO has not yet fulfilled all its duties under that settlement, and as such, the unfair dismissal application is not yet resolved;

•  The statement of service issued by the CSIRO as part of the settlement agreement has not been properly endorsed, by way of an authorised person’s signature under the official CSIRO letterhead;

•  A realistic possibility exists that the CSIRO may breach the agreement and, if such a circumstance arises, his unfair dismissal application should be reopened; and

•  The stop-bullying application should remain in abeyance until “the critical item in the binding settlement [is] fulfilled satisfactorily”.

[19] Dr Ng also contends that the settlement terms contemplate that his termination would be rescinded and that he would return to his employment and the workplace to plan for his retirement. On that basis, he would be at risk of further bullying when resuming his role in the workplace and in the arrangements surrounding his retirement.

[20] Dr Ng also provided a series of documents he contends supports the substance of his stop-bullying application. I observe that for reasons that will become clear, this present matter is only concerned with whether there is a relevant future risk of workplace bullying and not whether there has been such bullying to date. I also note that Dr Ng also provided some further documents, in effect, seeking to cast doubt upon the settlement of his unfair dismissal matter; however, these matters have been heard and determined by Clancy DP and both parties have accepted that decision.

[21] In response to the issues relied upon by the CSIRO about his application to access his superannuation funds, Dr Ng contends that he only made that application on the advice of the CSIRO and also informed the superannuation scheme that he was contesting his dismissal. Dr Ng also advised that his intended date of retirement was 15 March 2020 and that he did not request a backdated retirement date as now suggested by the CSIRO. Further, in submissions made after the hearing, Dr Ng also took issue with some of the final submissions made by the CSIRO about the actions taken to implement the agreed settlement of the unfair dismissal matter and in relation to what he described as “historic bad treatment” by CSIRO management.

4. Consideration

[22] The capacity for the Commission to dismiss an application on the basis that it has no reasonable prospects of success is provided by s.587(1)(c) of the FW Act in the following terms.

“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.”

[23] The provision establishes a discretion to dismiss an application by virtue of the expression “may”. Subject to the limitations in subsection (2), which are not relevant here, that discretion arises when the Commission is satisfied that one (or more) of conditions in subsection (1) have been met.

[24] In the context of a stop-bullying application, this may arise from the preconditions for the making of such an order set out in s.789FF(1) of the FW Act as follows:

“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.

(2)  … …”

[25] It is the second of these preconditions that is the focus of this matter and what I consider to be the proper application of this provision to the present circumstances was extensively dealt with in the June Decision. I do not repeat that discussion here but note that the following broad propositions were set out:

•  The cessation of the employment or contractual relationship may provide a context in which the stop-bullying application has no reasonable prospects of success by virtue of the import of s.789FF(1)(b) of the FW Act. This is not a reflection upon the substantive merit (or otherwise) of that application (s.789FF(1)(b)(i)), but rather, consideration only of whether there is the absence of one of the (other) prerequisites for the making of any orders from such an application due to the fact that the applicant is no longer a worker at potential risk in the relevant workplace (s.789FF(1)(b)(ii)). However, in making that assessment the Commission must consider whether there is any other context in which the applicant might, as a worker, be subject to the risk of future workplace bullying conduct in the relevant workplace.

•  Such a context could include where the applicant already has other work where they are likely to be involved in the relevant workplace in that capacity, or in my view, where there is some identifiable prospect that the applicant will return to the workplace as a worker as a result of some other intervention, such as a reinstatement order made by the Commission or by the Court. In that regard, this could well arise when an applicant had actually made a timely relevant application and was genuinely and actively seeking that particular form of remedy. The prospect of these events occurring must certainly be something more than mere speculation; however, the finding that there are no reasonable prospects of success is not a finding to be made lightly.

•  Further, if there is a finding of no reasonable prospects, the dismissal of an application under s.587 of the FW Act remains a matter of discretion and each case must be considered on its merits. The impact upon other parties, including the individuals named in the application and the employer/principal are also relevant considerations in the case management of a stop-bullying matter, including any decision to dismiss it on the grounds raised here. These latter considerations, and the fact that an applicant can make a fresh stop-bullying application should circumstances change, are relevant to the discretion, but not to the assessment of whether there are no reasonable prospects of success present in the extant application.

[26] In the June Decision I applied this approach and found as follows:

“[28] In this case, Dr Ng was dismissed by CSIRO after the stop-bullying application had been filed and the Commission had commenced to deal with the application, but before any determinative proceedings had been conducted. I draw no inference from the sequence of events here, other than that the Commission has not formed any view about the objective merit of that application or the response provided by the respondent parties. Further, in the circumstances, with one potential exception, there is also no probable basis upon which Dr Ng will return to the workplace in any capacity as a worker. Dr Ng’s unfair dismissal application is however an important consideration bearing upon that prospect and this is directly relied upon by him to suggest that his stop-bullying application not be dismissed at this point. CSIRO contend that the potential outcomes of the unfair dismissal application are speculative and uncertain and should not be considered in the present context.

[29] As expressly confirmed during proceedings in this matter, Dr Ng is actively seeking reinstatement to his former position at the CSIRO. Further, I have also been advised that his unfair dismissal application is now due to be heard and determined by the Commission. Although the proportion of reinstatements in the Commission’s unfair dismissal jurisdiction is relatively low and the CSIRO is strongly opposing that outcome in Dr Ng’s case, I am not satisfied to the required degree that in the context of this matter he has no reasonable prospects of success in the stop-bullying application by virtue of his dismissal. Whether he is ultimately successful in the unfair dismissal application and is reinstated is a matter for that arm of the Commission to determine. Further, a finding that he will not be reinstated, or rather there is no reasonable prospect of this occurring, is not a finding that can appropriately be made by this arm of the Commission at this juncture.”

[27] Dr Ng’s unfair dismissal application has now been dismissed and the decision to do so has been accepted by both parties. There is now no extant proceedings where Dr Ng’s return to the workplace is being pursued. Given my findings in the June Decision and the dismissal of the unfair dismissal application, there will be no reasonably foreseeable context in which Dr Ng would return to the workplace (and be subject to further relevant risk) unless there is some development arising from the terms of settlement that could lead to that outcome.

[28] Dr Ng has, in effect, advanced two alternative propositions. Firstly, that if the CSIRO has or will breach the terms of settlement, he would resume his unfair dismissal application. Whilst one cannot completely rule out further litigation associated with the matter, disputes about compliance with terms of settlement of this kind are matters for a Court of competent jurisdiction, not the Commission. That is, in general terms, the legally binding settlement is a complete answer to the unfair dismissal application and its terms are enforceable by the parties against each other. Any potential “reopening” of the unfair dismissal matter or related litigation to achieve that result, is at best a remote possibility, represents speculation, and is not a proper basis to contend that a relevant future risk is present.

[29] Secondly, Dr Ng contends that the terms of settlement mean, in effect, that he will be back in the workplace, at least pending his retirement. Although I can understand Dr Ng’s subjective view about the terms of settlement, the full context of the terms is more consistent with the employment relationship between the parties already being at an end. This is clear enough from the fact that the CSIRO is obliged to issue a statement of service confirming the retirement, and that the parties would enter into the “standard Fair Work Commission terms of settlement”. These standard terms contemplate mutual releases and other matters that arise in the context of the cessation of the employment relationship. In that light, the more natural meaning of the phrase “The Respondent will rescind the dismissal and allow the Applicant to retire from employment” is that this would occur through the operation of the settlement itself and not by Dr Ng returning to the workplace and then planning his retirement.

[30] Although I accept that this aspect may ultimately be a matter for the Court, for present purposes I consider that the applicant’s return to the workplace (and the future risk) on this basis is also highly speculative.

[31] In relation to Dr Ng’s superannuation application, the evidence before the Commission is not sufficient for me to determine that the nature and timing of that application means that Dr Ng had accepted his retirement at that point. As a result, I have not given any weight to the CSIRO’s submissions on that point.

4. Conclusions

[32] Given these findings I am satisfied at this point that there is no reasonable prospect that a basis to satisfy the second limb of s.789FF of the FW Act can be established. This in turn impacts upon the assessment of the reasonable prospect of the stop-bullying application and I am satisfied that there is no reasonable prospects that the present s.789FC application can succeed. In terms of the discretion that arises, I have considered all of the circumstances of this matter including the above findings and the fact that it is generally undesirable to leave an application of this kind in abeyance. Further, should circumstances change such that Dr Ng returns to the workplace, either through further employment or some form of litigation, he would be at liberty to make a further stop-bullying application should he have grounds to do so. In that light, the prejudice to Dr Ng is limited.

[33] It is important to emphasise that this decision is not a reflection upon the substantive merit of the stop-bullying application or the responses provided by the respondent parties and I confirm that these matters have not been heard and determined by the Commission given the circumstances of this matter and the operation of the FW Act.

[34] As a result of these findings, this application must be and is dismissed. I so Order.

COMMISSIONER

Appearances:

S Ng, the Applicant, on his own behalf.

B Maloney and K Ritchie for the Commonwealth Science Industrial and Research Organisation.

Hearing details:

2019

Adelaide, Melbourne and Canberra (by video link)

24 October.

Final written submissions:

Dr Ng: 30 October and 1 November 2019.

CSIRO: 24 October and 31 October 2019.

Printed by authority of the Commonwealth Government Printer

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 1 This arises from s.789FF of the FW Act.

 2   [2019] FWC 3055 (the June Decision).

 3   [2019] FWC 6573.

 4   [2019] FWC 6573 [83]-[84].

 5   [2019] FWC 6573.

 6   [2019] FWC 6573.

 7   PR712627.

 8   CSIRO written submissions, 25 September 2019.