Hill
[2023] FWC 1042
•4 MAY 2023
| [2023] FWC 1042 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Hill
(AB2021/203)
| COMMISSIONER MCKINNON | SYDNEY, 4 MAY 2023 |
Application for an order to stop bullying
On 13 April 2021, Mr Andrew Hill applied for orders to stop bullying at work under s.789FC of the Fair Work Act 2009 (the Act). The application is made against St Anthony’s Tennis Club (the Club), where for many years Mr Hill has provided tennis coaching services. The Club is an incorporated association.
A worker is “bullied at work” if a person or group of individuals 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.
It is only 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, that orders can be made to prevent its recurrence. Given the passage of time since the application was made, a question has arisen about whether orders could be made in the case.
The question is whether the application has reasonable prospects of success on the basis that Mr Hill is no longer performing any work for the Club. I have decided that it would be premature to dismiss the application on these grounds. These are my reasons.
Chronology
As noted above, the application to the Commission was made on 13 April 2021. At that time, Mr Hill regularly hired tennis courts at a tennis court complex behind St Anthony’s Catholic Church at Marsfield, which is managed by the Club under licence from the Catholic Church. The courts were hired for the purpose of providing tennis coaching services through Mr Hill’s company, AJH Leisure Pty Ltd (AJH). Mr Hill was then, and remains, an employee of AJH and a member of the Club.
AJH had previously provided services to the Club as its “Tennis Court Administrator” for which it was paid. The contract for services between AJH and the Club was terminated by the Club by letter on 30 August 2020, with effect on 28 September 2020. There was no contract between AJH and the Club through which Mr Hill performed work for, or for the benefit of, the Club, at the time this application was made.
To the extent that Mr Hill relies on his performance of work for the Club in a voluntary capacity to establish that he is a worker for the purposes of his application, I reject the submission. The Club does not require Mr Hill to undertake any work for the Club, and nor does it want him to - either in a paid or voluntary capacity. Further, and to the extent that Mr Hill does perform work on the Club premises such as sweeping tennis courts in preparation for lessons provided through AJH, he is performing work in his own business rather than in the business of the Club.
The relief sought by Mr Hill in his application to the Commission largely relates to restoration of the contract between AJH and the Club, together with refunds and a negotiated reasonable court hire fee rate. Mr Hill also seeks that the Club not enter his “worksite” (being facilities operated by the Club). According to the application, the “bulk of the income [in dispute] came from the bullying and harassment in the breach of my second contract”. The “second contract” appears to be a reference to an alleged exclusive coaching contract between AJH and the Club. The existence of such a contract was rejected by Manousaridis J of the Federal Circuit and Family Court of Australia on 25 January 2023.[2]
On 19 May 2021, then Commissioner Cambridge held a conference in relation to Mr Hill’s application. By that time, Mr Hill had applied to the Federal Circuit and Family Court to deal with the alleged breach of contract referred to in paragraph [6] above, as well as a general protections dispute arising from the Club’s termination of AJH’s contract for services. The matter was not resolved in conference before the Commission. Following a further conference on 26 May 2021, the application was adjourned pending the outcome of the Federal Circuit and Family Court proceedings. Judgment in those proceeding was delivered on 25 January 2023 and (in relation to penalty only) on 12 April 2023[3].
Conclusion
I find that Mr Hill is not a worker in the business of the Club, which is named in his application as the legal “employer/principal”. However, he is an employee and a worker in his own business, AJH. AJH continues to provide tennis coaching services to its clients from the Club’s premises. It therefore cannot be said at this early stage of the proceeding that there is no risk of his future interaction with the persons named in his application (who either are, or were, members of the Club’s committee) while he is at work in his business.
My conclusion in this regard should not be taken as an indication of any preliminary view about whether Mr Hill has been bullied at work, or whether he is at risk of any future bullying at work. Those matters are yet to be determined. I note, however, the observations of Manousaridis J that evidently acrimonious discord between Mr Hill and other members of the Club would fall “far short of conduct that could reasonably be characterised as bullying”.[4]
For these reasons, it would be premature in the circumstances to dismiss the application on the basis that it has no reasonable prospects of success. The application will instead now be listed for hearing in relation to whether Mr Hill has been bullied at work in the business of AJH by the persons named in his application.
In submissions, the Club sought to rely on principles of res judicata and estoppel to submit that the substance of Mr Hill’s claims has been dealt with by Manousaridis J in the Federal Circuit and Family Court proceedings and should not now continue to be litigated in the Commission. As the Club noted, those matters require further analysis before any decision can be made. While it has at least an arguable case, given the obvious overlap between matters litigated in the Federal Circuit and Family Court and in these proceedings, the arguments have not yet been fully articulated. Further, the submissions filed in support of those matters appear to be incomplete. I will instead deal with any such arguments at the hearing of the substantive application, in addition to the merits of the case.
Finally, I refuse the Club’s application for costs in relation to the application. It relies in part on the absence of a working relationship between Mr Hill and the Club, and in doing so fails to recognise the broader scope of the bullying provisions of the Act. As noted above, Mr Hill is a worker in his own business, who performs work at the Club’s premises. He is eligible to apply for orders to stop bullying at work in relation to individuals he encounters at those premises while he is at work in his business. The costs application is also premature, given my finding in relation to whether it can yet be said that Mr Hill’s application has no reasonable prospects of success. The substance of the application is yet to be determined. The opportunity for argument on costs will arise once the question of whether Mr Hill has been bullied at work by the individuals named in his application, and whether orders can and should be made in that regard, has been resolved.
Directions will issue separately in relation to the further conduct of the matter.
COMMISSIONER
Appearances:
A Hill on his own behalf.
S Alexander of Alexanders Lawyers on behalf of the respondent.
Hearing details:
2023.
Sydney (by video):
March 16.
[1] Fair Work Act 2009 (Cth), s.789FD.
[2] Hill v St Anthony’s Tennis Club [2023] FedCFamC2G 29.
[3] Hill v St Anthony’s Tennis Club (No 2) [2023] FedCFamC2G 269.
[4] Hill v St Anthony’s Tennis Club [2023] FedCFamC2G 29 at [95(b)].
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