Gregory Haywood v Department of the Environment

[2014] FWC 9444

[2014] FWC 9444

FAIR WORK COMMISSION

DECISION

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

Gregory Haywood
v
Department of the Environment and Others
(AB2014/1264)

DEPUTY PRESIDENT KOVACIC CANBERRA, 24 DECEMBER 2014

Application for an FWC order to stop bullying - Applicant’s employment - no risk of continued bullying at work - application for order to stop bullying dismissed on the basis of no reasonable prospect of success.

[1] On 28 May 2014 Mr Gregory Haywood (the Applicant) filed an application under s.789FC of the Fair Work Act 2009 (the Act) seeking an order to stop bullying in accordance with Part 6-4B of the Act. In his application, Mr Haywood alleged that he had been bullied by a number of co-workers at the Department of Environment (together the Respondents).

[2] Mr Haywood’s application was the subject of a number of conferences convened by the Fair Work Commission (the Commission) during which the parties agreed to a number of propositions suggested by the Commission. The application was listed for a further report back conference on 17 December 2014.

[3] On 12 December 2014 the Department of Environment’s legal representative advised the Commission by email that Mr Haywood’s employment had been terminated on 11 December 2014 with immediate effect. In that email the Department’s legal representative indicated that the Department understood that Mr Haywood’s application “will not proceed any further in the Commission” and that the conference listed for 17 December 2014 would be cancelled.

[4] The Commission decided to proceed with the conference and foreshadowed that it would hear any submissions that either party may wish to make in relation to the Commission dismissing the application in the light of the termination of Mr Haywood’s employment.

[5] In subsequent developments, Mr David Lander, who is understood to be acting for Mr Haywood in a general protections application relating to Mr Haywood’s dismissal, advised the Commission on the morning of 17 December 2014 that Mr Haywood was unavailable for the conference due to previously made holiday arrangements. In that email, Mr Lander also advised that “I can safely assume that he [Mr Haywood] would be content to accept advice to discontinue. The Commission’s jurisdiction would appear to have been overtaken by the dismissal and the new general protection application”.

[6] Mr Haywood has not advised verbally or in writing that he wishes to discontinue his application and no application to dismiss the substantive application has been received since Mr Haywood’s employment with the Department was terminated.

The statutory framework

[7] The relevant provisions of the Act are set out below.

“789FE FWC to deal with applications promptly

(1) ...

(2) However, the FWC may dismiss an application under section 789FC if the FWC considers that the application might involve mattersthat relate to:

(a) Australia’s defence; or

(b) Australia’s national security; or

(c) an existing or future covert operation (within the meaning of section 12E of the Work Health and Safety Act 2011) of the Australian Federal Police; or

(d) an existing or future international operation (within the meaning of section 12E of the Work Health and Safety Act 2011) of the Australian Federal Police.

Note: For another power of the FWC to dismiss applications under section 789FC, see section 587.

789FF FWC may make orders to stop bullying

(1) If:

(a) a worker has made an application under section 789FC; and

(b) the FWC is satisfied that:

(i) the worker has been bullied at work by an individual or a group of individuals; and

(ii) there is a risk that the worker will continue to be bullied at work by the individual or group;

then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group.

587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) ...

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.” [Underlining added]

Consideration of the issues

[8] In short, where an application is made under s.789FC of the Act, the Commission has the discretion under s.789FF of the Act to make any order it considers appropriate (other than an order requiring the payment of a pecuniary amount) to prevent the worker from being bullied at work where it is satisfied that:

(i) the worker has been bullied at work; and
(ii) there is a risk that the worker will continue to be bullied at work.

[9] In this case there is no dispute that Mr Haywood has made an application under s.789FC of the Act. The question of whether or not Mr Haywood has been bullied at work is yet to be determined by the Commission. However, given that it is not disputed that Mr Haywood’s employment has been terminated, there is clearly no risk that Mr Haywood will continue to be bullied at work by the Respondents.

[10] As such, the question becomes whether the Commission should continue to deal with the application or alternatively dismiss the application. To continue to deal with the application in circumstances where the Commission does not have the power to make an order because one of the threshold requirements can longer be met would be an unnecessary and unreasonable impost on the parties. Accordingly, consideration needs to be given to dismissing the application. I turn now to that issue.

[11] Section 789FE(2) of the Act sets out some of the circumstances in which the Commission may dismiss an application made under s.789FC of the Act. None of those circumstances exist in this case. However, the legislative Note at s.789(2) of the Act states that “For another power of the FWC to dismiss applications under section 789FC, see section 587.”

[12] Section 587(1) of the Act sets out a number of grounds on which the Commission may dismiss an application. The most relevant in the context of the matter currently before the Commission is set out at s.587(1)(c), i.e. that the application has no reasonable prospects of success. Further, s.587(3)(a) of the Act provides that the Commission may dismiss an application on its own initiative.

[13] The meaning and application of the phrase “no reasonable prospects of success” was canvassed by Deputy President Gostencnik in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank; Bianca Haines (ANZ) 1. The circumstances in ANZ are similar to those in the matter before me in that the applicant in that case, Mr Shaw, was dismissed prior to his application under s.789FC of the Act being determined by the Commission. The implications of this were set out in Deputy President Gostencnik’s decision in the following terms:

“[16] ...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. I see no reason in the circumstances why I should not exercise my discretion to dismiss Mr Shaw’s application given my finding and I do so.”

[14] Given the similarity of the circumstances in this matter and ANZ, I see no reason to depart from the approach adopted by Deputy President Gostencnik and will dismiss the application made by Mr Haywood for an order to stop bullying on the Commission’s own initiative.

Conclusion

[15] For the reasons outlined above I have decided to dismiss Mr Haywood’s application on the basis that it has no reasonable prospects of success. An order to that effect will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

G Haywood on his own behalf
S Wright for the Respondents

Conference details:

2014.

Canberra:

June 27, August 28, November 13

 1   [2014] FWC 3408 at paragraphs [8]-[11]

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