Grass
[2023] FWC 1126
•11 MAY 2023
| [2023] FWC 1126 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Grass
(AB2020/775)
| COMMISSIONER MCKINNON | SYDNEY, 11 MAY 2023 |
Application for an order to stop bullying at work
On 18 November 2020, Mr John Grass applied for orders to stop bullying at work under s.789FC of the Fair Work Act 2009 (the Act). The application is made in relation to the NSW Chinese Tennis Association Incorporated (NSWCTA) and its members Jeff Chin, Peter Yee, Roni Trieu and Andrew Gock as well as four people who play tennis on Tuesday and Thursday mornings: Bill Qian, Ray Zhao, Sally Yuan and Edward Leong.
Mr Grass submits that he is a volunteer and independent contractor to the NSWCTA. Mr Grass submits that he has been bullied, excluded and assaulted in response to raising concerns about the NSWCTA’s interference in his contracted and volunteer duties and activities, as well as its compliance with legal obligations and the NSWCTA constitution. At the heart of his complaint, it seems to me, is that Mr Grass felt excluded because of his age and related ability from playing doubles with other members and friends of the NSWCTA.
Under Part 6-4B of the Act, a worker is bullied at work if a person or group repeatedly behaves unreasonably towards the worker (or a group of workers of which they are a member) while they are at work in a constitutionally-covered business, and the behaviour creates a risk to health and safety.[1] Bullying at work does not include reasonable management action carried out in a reasonable manner. If the Commission is satisfied that a worker has been bullied at work, and there is a risk that the bullying at work will continue, orders can be made to prevent its recurrence.
Only a worker can apply for orders to stop bullying at work. A worker is a person who carries out work in any capacity for a person conducting a business or undertaking.[2] This includes work as an employee, contractor or subcontractor, or as a volunteer (a person acting on a voluntary basis to carry out work for a person conducting a business or undertaking).
The question is whether Mr Grass is a “worker” in relation to the application. I have decided that Mr Grass is not a worker of the relevant kind and for this reason, his application has no reasonable prospects of success. These are my reasons.
Chronology
The NSWCTA manages a tennis court complex owned by Ryde Council in the suburb of Meadowbank in Sydney. Mr Grass became a member of the NSWCTA in 2017. There is a dispute about whether he remains a member. The NSWCTA submits that his membership lapsed in July 2019 and he has not been a member since that time. Mr Grass submits that he was not required to pay for membership during the period when no tennis could be played because of the COVID-19 pandemic, but that he is now a “paid-up member” of the NSWCTA.
On 15 January 2018, Mr Grass entered into a Statement of Understanding with the NSWCTA about his coaching of junior members of the NSWCTA. The NSWCTA denies that any work was in fact carried out and this does not appear to be contested by Mr Grass.
On 20 January 2021, Mr Grass advised the Commission that this “contract” with the NSWCTA had been terminated. According to the NSWCTA, the arrangement ended in connection with an alleged failure of Mr Grass to provide his date of birth and Working With Children (WWC) certificate in connection with his proposed coaching activities, although this is in dispute.
Also on 20 January 2021, Mr Grass applied to the Commission to deal with a general protections dispute involving dismissal. On 4 February 2021, the matter was listed for conference before then Commissioner Cambridge. Following the conference, the Commissioner suggested that the NSWCTA consider possible protocols and rules for its Tuesday and Thursday social club so that players of all levels would have an opportunity to use the courts. On 1 April 2021, the matter was listed for a further conference before the Commission but was not resolved. Mr Grass was asked to provide a status update in the matter by May 2021 but did not do so.
On 8 April 2021, this Commission found that Mr Grass was not an employee of the NSWCTA and dismissed his general protections application involving dismissal, which is limited in its scope to employment relationships.[3] On 15 June 2021, a Full Bench refused permission to appeal the decision, noting the absence of a dispute about Mr Grass not being an employee of the Association. The Full Bench went on to observe (without making any finding of fact) that:
“His relationship with the Association was either one of independent contractor, or volunteer member, or both.”[4]
Mr Grass then applied to the Federal Circuit and Family Court of Australia[5] to deal with a general protections court application involving dismissal. The matter was listed for hearing on 10 September 2021. The NSWCTA failed to appear and Street J issued a default judgment “for contravention of s.340 of the Fair Work Act 2009 (Cth)”. The NSWCTA was ordered to pay an amount of $6,192.00 to Mr Grass. On 28 October 2021, further orders in the proceeding were made by consent, including that the proceedings be dismissed.
On 7 March 2022, Mr Grass commenced proceedings in the Supreme Court of NSW in connection with an alleged failure to refer disputes to arbitration as required by the NSWCTA Constitution. Two attempts at mediation of the matter in dispute occurred on 8 February 2022 and then after the commencement of proceedings, but the matter was not resolved.
On 12 January 2023, Mr Grass advised the Commission of the default judgment delivered by the Federal Circuit and Family Court of Australia on 10 September 2021. He communicated his perspective on this judgment as confirming that he “had a contract with the NSW Chinese Tennis association and was a volunteer for the NSWCTA”. He also advised that proposed mediation of the dispute involving Ryde Council and Tennis NSW had not taken place because the NSWCTA had refused to participate. He sought that the matter be listed for further proceedings. In response, the Commissioner encouraged Mr Grass to communicate directly with the named respondents to his application about whether they would participate in an external mediation or conciliation if their ongoing conduct remained to be addressed.
On 15 February 2023, directions were issued for a hearing in this matter on the question of whether Mr Grass is a worker in the business of the NSWCTA.
On 28 February 2023, Mr Grass registered his own company, John Grass Pty Ltd. In submissions on the jurisdictional question, Mr Grass relied on this entity as the “constitutionally-covered business” in which he works while undertaking “sport coaching, training and multisport activities” for the purposes of his application.
On 16 March 2023, a hearing was held on the question of whether Mr Grass is a worker in the business of the NSWCTA. Mr Grass relied on the default judgment entered by Street J to establish his relationship of subcontractor to the NSWCTA. He accepted that he had not “done anything for a while” for the NSWCTA. On the submissions of the NSWCTA, this has been the case since July 2019. Mr Grass also submitted that he attends the Meadowbank tennis courts facility as a playing member of the Tuesday and Thursday Club, which is not connected to the NSWCTA, and that he has an arrangement with “Voyager Tennis” to hire the courts to conduct tennis coaching.
Consideration
The evidence does not establish that Mr Grass is a worker in relation to his application.
Mr Grass is not a worker in the business of NSWCTA. Whether or not he is a member of the NSWCTA, there is no evidence that he has carried out any work for the NSWCTA at all. There is oral evidence of an agreement for work to be performed under a ‘Statement of Understanding’ for coaches, and an uncontested submission to the effect that no such work was ever performed. It is not in dispute that the agreement had come to an end by January 2021.
The default judgment ordered in favour of Mr Grass by Street J takes the matter no further. Default judgment can be given in circumstances where a party is in default, which occurred in this case when the respondent failed to attend a hearing on 10 September 2021. In the circumstances, no findings of fact were made in relation to the nature of the relationship between Mr Grass and the NSWCTA, including whether Mr Grass was a subcontractor or volunteer. In any event, those proceedings relied on a claim of unlawful termination of Mr Grass’ contract with the NSWCTA. The point being that even on Mr Grass’ case, the alleged independent contracting relationship between he and the NSWCTA had ceased to be in existence at the time of his general protections application involving dismissal.
There is no evidence of any other activities of a work-like nature that were, or are, carried out by Mr Grass for the NSWCTA. On that basis I do not find that Mr Grass is a volunteer for the NSWCTA. The fact that Mr Grass attends the Meadowbank tennis courts facility as a playing member of the Tuesday and Thursday Club does not make him a worker of the relevant kind.
Finally, Mr Grass sought to rely, for the purposes of establishing his standing in this application, on newly formed arrangements with John Grass Pty Ltd and with “Voyager Tennis”, through which he submits that he undertakes tennis coaching activities. However, there is no documentary evidence to confirm the nature of these arrangements. Further, Mr Grass’ application seeks orders to stop bullying while he is at work “in the NSWCTA”, in his capacity as independent contractor and/or volunteer for that entity. In the absence of any apparent link between the new arrangements and the circumstances to which the application is directed, I am not prepared to entertain what would amount to a substantial late amendment of his application: one that would alter not only the identity of the constitutionally-covered business in which the alleged bullying is said to have occurred, but also the entire context in which the alleged bullying at work is said to have arisen.
Conclusion
Mr Grass is not a “worker” in the NSWCTA for the purposes of Part 6-4B. Accordingly, the Commission cannot be satisfied that there is a risk that Mr Grass will continue to be “bullied at work” by the group of individuals named in his application while he is at work in that business. It follows that there is no reasonable prospect of orders being made to stop the alleged bullying at work in relation to Mr Grass.
The application is dismissed.
COMMISSIONER
Appearances:
J Grass on his own behalf.
M Darian-Smith of Counsel for the respondent.
Hearing details:
2023.
Sydney (by video):
March 16.
[1] Fair Work Act 2009 (Cth), s.789FD.
[2] Fair Work Act 2009 (Cth), s.789FC(2); Work, Health and Safety Act 2011 (Cth), s.7.
[3] Grass v NSW Chinese Tennis Association[2021] FWC 1888.
[4] Grass v NSW Chinese Tennis Association[2021] FWCFB 3443 at paragraph [17].
[5] SYG1172/2021.
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