Emad Sinan v Anca Pty Ltd T/A Anca Machine Tools

[2018] FWC 1294

[2018] FWC 1294

FAIR WORK COMMISSION

DECISION

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

Emad Sinan
v
ANCA Pty Ltd T/A ANCA Machine Tools; Dimitry Paritsky; Samuel Kirkpatrick
(AB2018/21)

DEPUTY PRESIDENT MASSON MELBOURNE, 8 MARCH 2018

Application for an FWC order to stop bullying – Employee dismissed after application lodged – Application to dismiss because application for order to stop bullying has no reasonable prospect of success – No risk of continued bullying at work – Application to dismiss upheld –Application for order to stop bullying dismissed.

[1] On 16 January 2018, Mr Emad Sinan (Applicant) made an application for an order to stop bullying pursuant to s 789FC of the Fair Work Act 2009 (the Act). The Applicant alleges that he has been bullied at work during his employment with ANCA Pty Ltd T/A ANCA Machine Tools (ANCA Machine Tools). He alleges that he has been subjected to bullying at work by Mr Dimitry Paritsky and Mr Samuel Kirkpatrick who are employed by ANCA Machine Tools. ANCA Machine Tools are hereafter referred to as the ‘Respondent’.

[2] The Applicant’s employment with the Respondent was subsequently terminated on 9 February 2018. On 12 February 2018, the Respondent applied for the dismissal of the Applicant’s bullying application pursuant to s 587(1) of the Act on the ground that that application has no reasonable prospects of success.

[3] Upon receipt of the Respondent’s application for the dismissal of the Applicant’s anti-bullying application, the Commission wrote to the Applicant on 12 February 2018 inviting him to make submissions or file material by 16 February 2018 in response to the Respondent’s application. In correspondence to the Commission dated 16 February 2018, the Applicant sought an extension of time to file submissions and materials. That request was granted and a revised date for the Applicant’s submissions and materials was set for 2 March 2018. No submissions or materials were subsequently filed by the Applicant, so I determined to deal with the matters on the material before me.

[4] The relevant remedy in respect of bullying applications is an order which the Commission considers appropriate ‘to prevent the worker from being bullied at work by the individual or group’. 1 If other jurisdictional prerequisites have been met, the discretion to make an order is only exercisable if, relevantly, 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. 2

[5] It is clear from the terms of s 789FF that if I am satisfied that an applicant (worker) has been bullied at work by an individual, or group of individuals, the next step is to then determine whether there is a risk that the applicant (worker) will continue to be bullied at work by the individual or group of individuals. In assessing that risk, I must be satisfied that the risk that the applicant will continue to be bullied at work by the individual or group of individuals although not imminent, must be real, and not merely a conceptual or hypothetical, risk.

[6] It is not disputed that that an application has been made under s 789FC of the Act. Determination of whether bullying has occurred has not been made. However, given the Applicant’s dismissal on 9 February 2018, the key issue to be now considered is, even if bullying was found to have occurred, is there a risk that the bullying conduct towards the Applicant will continue. In Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank and Another (Shaw v ANZ), 3 Deputy President Gostencnik, when dealing with an anti-bullying application following the dismissal of the applicant, found 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…...”

[7] The reasoning of the Deputy President in Shaw v ANZ is apropos to the circumstances in the present matter before me and I respectfully adopt that reasoning.

[8] Section 587 of the Act provides a discretion to dismiss an application if, inter alia, the application has no reasonable prospect of success. Without traversing the authorities that have considered the proper application and meaning of the phrase, ‘no reasonable prospect of success’, it is sufficient to make the following observations.

[9] 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. These examples do not provide an exhaustive description of the circumstances when an application has no reasonable prospect of success.

[10] In Spencer v The Commonwealth of Australia (Spencer), 4 consideration was given to the meaning of the phrase, ‘no reasonable prospect’, in the context of s 31A of the Federal Court of Australia Act 1976. In that case the majority (Hayne, Crennan, Kiefel and Bell JJ) said the following:

“In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described with or without the additional intensifying epitaphs like “clearly”, “manifestly” or “obviously” as “frivolous”,” untenable”, “groundless” or “faulty” but none of these expressions alone or in combination should be understood as providing a sufficient chart of the metes and bounds of the powers given by section 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.

Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under section 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 “just and equitable” when it is used to identify the ground for winding up of 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 power as revealed by the text of the provision would be defeated if its application is read as confined to cases of a kind which fell within the earlier different procedural regimes.” 5

[11] I believe that the observations in Spencer are relevant to the construction and application of the phrase ‘has no reasonable prospect of success’ as it appears in s 587 of the Act.

[12] The power to dismiss in s 587 is exercisable in relation to ‘an application’. This raises the question of the nature of the application the Applicant has made. In the context of the Commission’s anti-bullying jurisdiction, the answer is to be found in s 789FC, which provides that a worker ‘who reasonably believes that he or she has been bullied at work may apply to the FWC for an order under s 789FF’. In assessing whether ‘the application’ for an order under s 789FF ‘has no reasonable prospects of success’, it is plainly necessary to consider whether each of the preconditions for the making of an order under that section might be able to be made out.

[13] It not contested that the Applicant’s employment with the Respondent has ended. The question as to whether the Applicant’s bullying application has no reasonable prospect of success must be answered by having regard to: the statutory provisions contained in Part 6-4B of Chapter 6 of the Act; the provisions under which the Applicant’s application is made; taking into account the facts as presently known; the facts that are not disputed; and taking the Applicant’s case at its highest. Put simply, is there some reasonable prospect that the Applicant will be able to persuade me to make an order under s 789FF?

[14] Section 789FC of the Act provides that a worker who reasonably believes that he or she has been bullied at work may apply to the Commission for an order under s 789FF. Section 789FB sets out the meaning of the phrase ‘bullied at work’. That a person who seeks an order has made an application under s 789FC is one of the matters about which I must be satisfied before considering whether to exercise my discretion to make an order to stop bullying under s 789FF. It is clear in the present matter that the Applicant has made an application under s 789FC.

[15] That a person who has made an application has been bullied at work by an individual or a group of individuals is another of the matters about which I must be satisfied. This is in dispute. For the purposes of this application to dismiss, I am prepared to assume without deciding, that the Applicant will be able to satisfy me at the hearing of his application that he was bullied at work by an individual or group of individuals identified in his application. On this basis, two of the three prerequisites in s 789FF(1) to making an order would be satisfied.

[16] However, as s 789FF(1)(b) makes clear, I must also be satisfied that there is a risk that the Applicant will continue to be bullied at work by that individual or group of individuals. Without satisfaction of the existence of a risk of continued bullying at work of the Applicant by the individual or group, no power to make an order exists.

[17] The Applicant has not yet, but may, take steps to seek a remedy in relation to his dismissal by the Respondent. Such an application may, if successful, result in reinstatement at some point in the future. The prospect of the Applicant being ‘at work’ with the Respondent is clearly speculative or hypothetical, as is the consequent risk of continued bullying of the Applicant at work by an individual or group.

[18] As the Applicant has been dismissed and is no longer employed by the Respondent, it cannot be established that there is a risk that the Applicant will continue to be bullied at work by the individual or group. There is presently no real risk of that eventuality. That has been the case since 9 February 2018 and continues to be the case as at the date of this decision.

[19] It necessarily follows that I do not have power to make an order to stop bullying and, as a consequence, I am satisfied that the application for an order under s 789FF has no reasonable prospect of success.

[20] In reaching this conclusion, I have also considered the option of simply adjourning the present matter subject to the outcome of what (if any) application the Applicant were to make in relation to his employment termination. In my view there would be little utility to an adjournment given the uncertainty and speculation that such a course of action raises.

[21] Were the Applicant to make an unfair dismissal or general protections application in relation to his employment termination, neither of which have yet been made, and were such an application to result in re-instatement, then there would be no barrier to the Applicant making a fresh anti-bullying application save for the normal jurisdictional requirements.

[22] I am therefore of the opinion that the application for dismissal of the Applicant’s application for an order under s 789FF should be granted. An order dismissing the Applicant’s application for an order under s 789FF is separately issued in PR600839.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR600840>

 1 S 789FF(1) Fair Work Act 2009.

 2 S 789FF(1)(b) Fair Work Act 2009.

 3   [2014] FWC 3408.

 4 (2010) 241 CLR 181.

 5   Ibid at [59] – [60].