DECISION

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

Dr Say Teong Ng
(AB2019/104)

COMMISSIONER HAMPTON

ADELAIDE, 11 JUNE 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 – particular circumstances of this case assessed – not presently satisfied that no reasonable prospects of success demonstrated – matter of discretion does not arise – application adjourned with liberty to apply.

1. What this decision is about

[1] On 5 March 2019, Dr Say Ng made an application for a stop-bullying order (the stop-bullying application) under s.789FC of the Fair Work Act 2009 (FW Act). 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] As a result of the termination of Dr Ng’s employment on 19 March 2019, CSIRO ultimately sought to have the stop-bullying application dismissed by the Commission under s.587(1) of the FW Act on the basis that the application had no reasonable prospects of success (the s.587 application). Put briefly, the s.587 application is founded on the contention that as Dr Ng has been dismissed and was no longer in the workplace, there was no basis to make an order because there was no foreseeable future risk of relevant workplace bullying.

[3] Dr Ng opposes the s.587 application and contends that the stop-bullying application should be held in abeyance pending the outcome of an application he has made under s.394 of the FW Act (the unfair dismissal application). The unfair dismissal application was scheduled for a conciliation conference to be conducted on behalf of the Commission on 17 May 2019.

[4] The parties have subsequently reported that the unfair dismissal application was not resolved at conciliation and that it will now be subject to hearing and determination by another arm of the Commission.

[5] This decision deals with the s.587 application.

2. The cases advanced by the parties

2.1 CSIRO

[6] CSIRO contends 1 that the stop-bullying application should be dismissed, rather than held in abeyance, on the following grounds:

• The 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;

• Although Dr Ng has made an unfair dismissal application, that application is being strongly contested and any reinstatement arising from that application was speculative and hypothetical as found by the Commission in some other similar matters;

• There…

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 3055
Case: [2019] FWC 3055
Decision Date: 11 JUNE 2019

CaseChat Overview and Summary

The case involves Dr. Say Teong Ng, who was dismissed from their employment and subsequently filed an application for an order to stop bullying under the Fair Work Act. The respondent employer sought to have the application dismissed, arguing that there were no reasonable prospects of success. The matter was heard in the Fair Work Commission. The primary legal issue before the Commission was whether there were reasonable prospects of success in Dr. Ng's application to stop the alleged bullying. This hinged on whether the statutory requirements for such an order to be made were met, considering the future risk implications as outlined in section 789FF(1)(b) of the Fair Work Act.

In addressing this issue, the Commission considered the statutory requirements and factors relevant to deciding the application. It noted that the matter of whether there were reasonable prospects of success was a question of discretion, but this did not arise if the statutory requirements were not met. The Commission detailed the factors that should be considered in making such a decision and assessed the particular circumstances of this case. It concluded that it was not presently satisfied that the statutory requirements for an order to be made were not met, and therefore the matter of discretion did not arise.

The Commission found that Dr. Ng's application had reasonable prospects of success and denied the respondent's application to dismiss the stop-bullying application. The matter was adjourned with liberty to apply, allowing the respondent to revisit the issue if new evidence or circumstances arose that could impact the assessment of reasonable prospects of success.

Orders