F.G.

[2019] FWC 6283

[2019] FWC 6283

FAIR WORK COMMISSION

REASONS FOR DECISION

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

F.G.
(AB2019/326)

COMMISSIONER HAMPTON ADELAIDE, 12 SEPTEMBER 2019

Application for an FWC order to stop bullying - preliminary proceedings - party unable to participate in proceedings but continuing alleged risk of workplace bullying conduct – whether interim order should be made – strong prima facie case – balance of convenience in favour of order that protected the health and safety of all parties – interim order made.

1. What this Decision is about

[1] Mr F.G. 1 (the Applicant) has made an application for stop bullying orders under s.789FC of the Fair Work Act 2009 (the Act). The application alleges various elements of bullying conduct by a Manager and Co-director of his workplace, Ms O.O. (the Person Named). The workplace is a retail services business conducted by a Corporate Trustee.2 The application is supported by his employer but strongly opposed by the Person Named.

[2] On 10 September 2019, following a process to be outlined below, I issued an Interim Order in this matter that was designed to prevent unreasonable workplace related conduct by any of the parties pending the hearing and determination of this matter.

[3] This Decision explains the context and reasons for taking that action.

2. The context for the consideration of an Interim Order

[4] The Commission initially organised on two occasions, with the apparent support of the parties, a mediation conference. Each scheduled conference involved an Interpreter for both the Applicant (Farsi) and the Person Named (Turkish). It is apparent from the materials provided by the parties that whilst each of these parties have reasonable written English communication and general verbal skills, on more complex and technical matters, assistance is required for each to fully participate in any proceedings before the Commission. On the first occasion, the Person Named did not attend and when followed up by the Commission, staff were advised that her General Practitioner was not recommending that she see anyone associated with her workplace and that there were proceedings involving the other owner of the business (Mr E.T.) about her separating from the business (the business litigation). The Person Named had earlier provided a medical certificate for a closed period that expired prior to the scheduled conference. On the second occasion, the Person Named provided a medical certificate on the eve of the conference and it was subsequently cancelled by the Commission.

[5] The Applicant and Mr E.T. reported to the Commission that despite the medical certificate and the status of the business litigation, the Person Named continued to visit the workplace (where she remained a Co-owner) and that she continued to engage with the Applicant about this application in an allegedly unreasonable manner. The Applicant and his employer sought that the Commission issue some Orders to prevent further bullying conduct. I have included the above for context and confirm that no findings have been made about the alleged conduct of the Person Named. I do however accept that until relatively recently, the Person Named did occasionally attend the workplace before and after the cancelled mediation conferences.

[6] In the circumstances, I convened a Directions Conference with the parties on 30 August 2019 to explore the status of the matter and to permit the Applicant and the employer to advance their case for some form of Order to be made by the Commission. This was scheduled after the expiry of the earlier medical certificate provided by the Person Named.

[7] In the immediate lead up to the Directions Conference, the Person Named provided a further medical certificate that indicated, amongst other matters, that she was unfit for work due to “bullying and harassment at the workplace over several months” and is to have no contact with the employer. Although the medical certificate and attached communication did not indicate that the Person Named was not fit to participate in the conference, or would not be attending, I assumed that this latter implication was intended. The parties were advised that the Preliminary Conference would proceed with the apparent circumstances of the Person Named being taken into account. The Person Named did not participate. 3

[8] During the Preliminary Conference, the Commission was informed that:

•  The Person Named had voluntarily not been working in the company but remained an Owner, could visit the workplace in that capacity, and the medical certificate was only for a stated period;

•  There were proceedings on foot for the eventual dissolution of the ownership agreement and an interim order had been made (by consent) by the relevant Supreme Court that the Person Named would not participate in the management of the employer and was restrained from operating its bank account; 4

•  The proceedings associated with the business would be resuming in October 2019 and a final outcome could be expected later in the year; and

•  The Applicant remained concerned that the Person Named may still approach him about this application and otherwise treat him unreasonably in any interactions that might take place within the workplace.

[9] Immediately following the Directions Conference, the Commission advised all parties by email in the following terms:

“As previously advised, the conference in this matter proceeded noting that Ms (O.O.) would not be attending. The Commission also notes that Ms (O.O.) has provided a certificate of capacity indicating both that she was to have no contact with her employer and was unfit for work between 29 August and 26 September 2019. The Commission has treated that certificate on face value.

Given the absence of Ms (O.O.), no decisions have been taken during, or as a result of, the conference. As foreshadowed in earlier communications, the parties attending did seek that the Commission deal with the application as soon as was possible and to take some action in the interim. The Commission has also subsequently been supplied with a copy of Consent Orders of the Supreme Court … … relating to the business of the Employer and has also treated that Order on face value.

In all of the circumstances, the Commission is considering whether it should make an interim order in this matter. The interim order would not represent any concluded view about the competing allegations and propositions set out in the application and the response documents, but would seek to provide a safe and appropriate workplace for all parties whilst the application was further considered.

A copy of a Draft Interim Order is attached.

Before the Commission determines whether it will make an interim order, and if so, what its terms would be, all parties are invited to inform the Commission as to whether this course of action should be adopted.

Submissions should be made by email to (chambers) and copied to the other parties by no later than Friday 6 September 2019. The Commission will then determine the interim matter and advise the parties following the consideration of the submissions and the matter more generally.

Information about the stop-bullying jurisdiction and the concept of interim orders may be obtained from the Anti-bullying jurisdiction Benchbook.”

[10] This process was adopted to provide a further opportunity for all parties, and the Person Named in particular, to be heard on the issue, given her absence from the Conference and apparent medical restrictions.

[11] No submissions or responses were received from any of the parties, and having reviewed the matter, an Interim Order was made by the Commission largely 5 in the form of the draft provided to the parties.

3. The applicable principles

[12] Section 589 of the Act provides as follows:

“589 Procedural and interim decisions

(1) The FWC may make decisions as to how, when and where a matter is to be dealt with.

(2) The FWC may make an interim decision in relation to a matter before it.

(3) The FWC may make a decision under this section:

(a) on its own initiative; or

(b) on application.

(4) This section does not limit the FWC’s power to make decisions.”

[13] In various matters, 6 the Commission’s apparent power to make interim orders in s.789FC matters has been applied and certain principles have arisen about how any such discretion should be exercised.

[14] Without repeating all of the approach evident in those matters, this involves the consideration as to whether a prima facie 7 case (or a “serious question” to be tried) has been made out by the applicant for the Order and whether the inconvenience or injury which the applicant would be likely to suffer if an interim order were refused outweighs or is outweighed by the injury which the respondent would suffer if an injunction were granted (the balance of convenience). Further, the nature of the remedy provisions of s.789FF of the Act should inform the consideration of the request for interim orders and the nature of any discretion to be exercised. However, the purpose of the interim orders, including to preserve the capacity to advance the substantive application in appropriate circumstances, may also be considered.

[15] In addition, given the scheme of the Act, interim orders of the nature being considered here should not be issued lightly. The direct intervention of the Commission at such an early stage of proceedings should be exercised with considerable caution. Further, each application must be considered in its own right and circumstances.

[16] I would also respectfully observe that the approach adopted by Gostencnik DP in Worker A, B, C, D and E v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and others⁸, where interim orders were made in a s.789FC anti-bullying application to prevent the escalation of probable bullying conduct, is also consistent with the general approach adopted in these matters.

4. Why the Interim Order was made

[17] The matters alleged by the Applicant within the originating application would represent serious bullying conduct within the meaning of s.789FC of the Act. 9 The alleged conduct, if proven, was capable of providing the basis upon which Orders might be made and this included the future risk of bullying conduct.10 I consider that there was a serious question to be tried in this matter.

[18] In terms of the balance of convenience, there were a number of partially competing considerations including:

•  The Applicant remained in the workplace and there was a prospect that the Person Named may still have contact with him in that capacity, notwithstanding her apparent medical condition and the status of the business litigation;

•  The Commission could not, due to the circumstances outlined earlier in this Decision, deal with the substantive application or seek a resolution between the parties in the immediate future;

•  The Person Named was subject to a medical certificate, had claimed via that certificate that she had been bullied by the employer, and her response to this application rejected the allegations against her; and

•  The safety and health of all parties were apparently at risk and could be supported by an appropriately crafted Interim Order.

[19] On balance, I considered that there was a strong prima facie case and that the balance of convenience fell in favour of making an Interim Order.

5. The terms of the Interim Order

[20] The operative terms of the Interim Order issued by the Commission on 10 September 2019 were as follows:

“Pursuant to s.589(2) and s.789FF of the Fair Work Act 2009, the Fair Work Commission orders that until the hearing and determination of this matter, or further order of the Commission:

1. In any communications with each other in or in connection with the business conducted by the Employer, the Individual Parties are to treat each other with respect and dignity and are not to yell, belittle or otherwise conduct themselves in an unreasonable manner.

2. The Person Named and the Applicant are not to contact each other regarding the workplace, or matters in connection with the workplace, by any means outside of the business premises conducted by the Employer.

3. The Person Named and the Applicant are not to discuss with each other the merit or otherwise of this application and the positions adopted by the Individual Parties connected with it when in the workplace of the Employer or elsewhere.

4. The Employer is to implement reasonable measures within the workplace to ensure that the Individual Parties are aware of these obligations.”

[21] The Interim Order clearly defined each of the parties and entities set out in the operative terms and contained the following additional provisions:

“C Service of this Order may be undertaken on each relevant party by any one or more of the means set out in Rule 42 of the Fair Work Commission Rules 2013.

D Pursuant to s.594 of the Fair Work Act 2009, this Interim Order is not to be published on the Fair Work Commission’s website in a form that discloses the identity of any of the parties.

E This Order will come into force on and from 10 September 2019.

F Liberty is granted to seek the variation or rescission of this Order upon application.”

[22] The Interim Order was served upon all parties in accordance with the Rules.

6. The identity of the parties

[23] I have issued this Decision without identifying the parties involved. I have also, in effect, directed that the Interim Order not be published on the Commission’s website in a form that identifies the parties. I have done so in this case for the following reasons.

[24] There are some unique features associated with this matter that include the fact there is related commercial litigation and the disclosure of the identity of the parties in the present context would not be helpful. Further, there are genuine health concerns for both the Applicant and the Person Named and the public disclosure of their circumstances, particularly in the absence of any findings about the substantive allegations and counter-allegations, would not be in their best interests.

[25] In these circumstances, I considered that these factors outweighed the considerations that might otherwise lead to the full disclosure of the identity and circumstances of the parties. 11

[26] The full Interim Order as issued by the Commission has been provided to each of the parties and a broader confidentiality order 12 has not been made. This permits all parties to reference the Order as required in order to comply with its terms and seek enforcement should that be necessary.

7. Further proceedings

[27] I emphasise that given the nature of the present proceedings and the apparent circumstances of the Person Named, the Commission has not made any findings about the substantive allegations and counter allegations in determining this matter, beyond those required to apply the relevant principles pertaining to interim orders. In particular, I have not found that any party has been subject to workplace bullying, only that there is a strong prima facie case. Any findings beyond this point will require the Commission to hear and determine the substantive application based upon evidence.

[28] Given the Interim Order and the circumstances of the parties, including the health of the Person Named and the related business litigation that might well directly impact upon this matter, I will not schedule further proceedings at this point. However, liberty is granted for any party to apply to seek that the substantive matter be heard and determined by the Commission.

[29] As outlined above, liberty has also been granted to all parties to seek the rescission or variation of the Interim Order.

COMMISSIONER

Appearances:

Mr F.G., the Applicant on his own behalf.

Mr E.T., on behalf of the Employer Principal.

No appearance by or on behalf of Ms O.O., the Person Named.

Conference details:

By Telephone

2019

30 August.

Printed by authority of the Commonwealth Government Printer

<PR712163>

 1   The parties names have not been disclosed in this Decision for reasons set out later.

 2   This would be a trading corporation for the purposes of s.789FD(1) of the Act.

 3   Section 600 of the Act permits the Commission to determine a matter in the absence of a party.

 4   A copy of the Court’s Consent Order was subsequently supplied to the Commission and to all of the parties.

 5   Administrative matters were confirmed in the Orders as issued but all of the operative terms were as advised to the parties in the draft.

 6   Worker A, B, C, D and E v AMWU[2016] FWC 5848; Lynette Bayly [2017] FWC 1886; Hari Subramanian [2017] FWC 3492; D.K. [2018] FWC 6691; South Eastern Sydney Local Health District v Kusum Lal[2019] FWCFB 1475; Victoria Leeman [2019] FWC 2228; Applications by Hien, Le; Sankey, Joseph; Soy, Bora [2019] FWC 4274; Kim Hodgkins [2019] FWC 3344; Daniel Krcho [2019] FWC 5278; Nicholas Richardson [2019] FWC 5441. Interim Orders have been made in three of these matters but the same broad approach has been adopted in all cases.

 7   When considered based upon the initial materials provided.

8 [2016] FWC 5848.

 9   See Amie Mac v Bank of Queensland Limited and Other[2015] FWC 774 and Ms SB [2014] FWC 2104.

 10   Section 789FF of the Act.

 11   See Amie Mac v Bank of Queensland Limited, [2015] FWC 774 at [5] to [13]

 12 Available under s.594 of the Act to prohibit the publication of the names of persons, matters contained in documents and the whole or part of decisions or reasons more generally.