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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dr Say Teong Ng

Details

AGLC: Dr Say Teong Ng [2019] FWC 7279
Case: [2019] FWC 7279
Decision Date: 6 NOVEMBER 2019

CaseChat Overview and Summary

In the case of Dr Say Teong Ng, the applicant had filed an application for a Fair Work Commission (FWC) order to stop bullying against his employer. The employer subsequently applied for the bullying application to be dismissed under section 587(1)(c) of the Fair Work Act. The applicant had been dismissed from his employment, and the matter was initially stayed pending developments in an unfair dismissal application. That application was later dismissed as a result of a settlement, although there was a dispute over the terms of that settlement.

The legal issues before the court included whether the applicant had demonstrated reasonable prospects of success in the bullying application and whether the FWC had reasonable grounds to consider the factors outlined in section 789FF(1)(b) of the Fair Work Act. The court was required to consider the future risk import of the bullying application and whether any return to the workplace was reasonably foreseeable. The court also had to determine whether the matter of dismissal under section 587(1)(c) was appropriate given the circumstances.

The court found that the applicant had not demonstrated reasonable prospects of success in the bullying application, as there was no reasonably foreseeable future risk of bullying. The court considered the factors outlined in section 789FF(1)(b) of the Fair Work Act and found that the matter of dismissal under section 587(1)(c) arose. The court was satisfied that the employer had demonstrated that there were no reasonable prospects of success in the bullying application, and the matter was dismissed.

No further orders were made by the court.

Orders