James Willis v Capital Radiology Pty Ltd T/A Capital Radiology; Ms Peita Carroll; Ms Marie Gibson; Mr Dominik Kucera

[2016] FWC 716

[2016] FWC 716

DECISION

Fair Work Act 2009

s.789FC - Application for an order to stop bullying

Mr James Willis

v

Capital Radiology Pty Ltd T/A Capital Radiology; Ms Peita Carroll; Ms

Marie Gibson; Mr Dominik Kucera

(AB2015/416)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 4 FEBRUARY 2016

Application for an FWC order to stop bullying; application to dismiss pursuant to

s.587(1)(c); whether application for order has no reasonable prospect of success; whether

application should be adjourned pending hearing and determination of Federal Circuit Court

proceedings; application to dismiss granted.

[1]        By application lodged on 2 July 2015, Mr James Willis (Applicant) seeks an order to

stop bullying pursuant to s.789FC of the Fair Work Act 2009 (Act). The Applicant alleges

that he has been bullied at work during his employment with Capital Radiology Pty Ltd

(Capital Radiology). He alleges that he has been subjected to bullying at work by Mr Dominik

Kucera, Ms Peita Carroll, Ms Marie Gibson and Mr Kim Vuu, each of whom is employed by

Capital Radiology. These employees together with Capital Radiology are hereafter

collectively referred to as the ‘Respondents’.

[2]        The Applicant’s employment with Capital Radiology was terminated summarily on 14

July 2015. On 17 July 2015, the Respondents applied for the dismissal of Mr Willis’ bullying

application pursuant to s.587(1) of the Act on the ground that that application has no

reasonable prospects of success.

[3]        The Applicant has commenced a proceeding in the Federal Circuit Court

(MLG1997/2015) in which he alleges, inter alia, that Capital Radiology, in respect of the

dismissal of his employment took adverse action against him in contravention of s.340 of the

Act. Pursuant to Orders made by Judge Jones on 9 October 2015, that application is fixed for

trial commencing 5 September 2016.

[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’. 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

[2016] FWC 716

 there is a risk that the worker will continue to be bullied at work by the individual or

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group.

[5]        Assuming that there is satisfaction of the first limb, there must be satisfaction of a risk

that the worker will ‘continue’ to be bullied ‘at work’ by the individual or group responsible

for the bullying identified in the first limb. It is readily apparent 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 relevant enquiry then focuses on whether there is a risk that the

applicant (worker) will continue to be bullied at work by the individual or group of

individuals. It seems to me, that in assessing whether there is a relevant risk, 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]        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.

[7]        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.

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[8] In Spencer v The Commonwealth of Australia, 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 plurality (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

[2016] FWC 716

its application is read as confined to cases of a kind which fell within the earlier different

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procedural regimes.’

[9]        It seems to me that the observations in Spencer are apt to apply to the construction and

application of the phrase ‘has no reasonable prospect of success’ as it appears in s. 587 of the

Act. Therefore, in the context of a legislative power to dismiss as that found in s.587 of the

Act one should not make the mistake of confining the circumstances in which the phrase ‘has

no reasonable prospect of success’ might apply to those that are frivolous, untenable,

groundless or faulty and that full expression should be given to that phrase.

[10]      I would also observe that the answer to the question whether a particular application

has no reasonable prospect of success in the context of s.587 may differ depending on the

time at which the question is asked. This, it seems to me, is evident from the word ‘has’. So it

is that an application at its inception may have some reasonable prospect of success but, as

circumstances change during the course of dealing with an application, those changed

circumstances might have the result that an application which once had some reasonable

prospect of success no longer has a reasonable prospect of success.

[11]      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 section 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.

[12]      It is uncontroversial that the Applicant’s employment with Capital Radiology has

ended, though the question whether it took place in contravention of the Act remains

contentious. It is also not in contention that the Applicant’s Federal Circuit Court application

seeks reinstatement as a remedy and that the court has the discretionary power to grant the

remedy if the Applicant succeeds in establishing a contravention. So far as is relevant for

present purposes the question whether the Applicant’s bullying application has no reasonable

prospect of success must be answered, 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, and taking into account the facts as presently known, those 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?

[13]      As already indicated, s.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. That this has occurred is not in dispute.

[14] 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
[2016] FWC 716

dispute and will likely be hotly contested. For the purposes of this application to dismiss, I

think it appropriate 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.

[15]      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 there is an absence of power to make an order.

[16]      As the Applicant has been dismissed and is no longer employed by Capital Radiology

it cannot now be concluded that there is a risk that the Applicant will continue to be bullied at

work by the individual or group. There is no real risk of that eventuality. That has been the

case since 14 July 2015 and continues to be the case as at the date of this decision.

[17]      The Applicant is taking steps to seek a remedy in relation to his dismissal by Capital

Radiology and that may, if he succeeds, result in reinstatement at some point in the future.

However, that case will not be heard by the Federal Circuit Court until September 2016 with a

decision still later in time. As things presently stand (and would stand if I were to hear and

determine this matter over the next few months) the prospect of the Applicant being ‘at work’

with Capital Radiology is speculative or hypothetical, as is the risk of continued bullying at

work of the Applicant by the individual or group. As a matter of fact, the Applicant is not and

will not be at work with Capital Radiology. There cannot therefore be a risk that the Applicant

will continue to be bullied at work by an individual or group of individuals as identified in his

application, because he is no longer employed by Capital Radiology and is no longer at work.

That position will pertain for the foreseeable future.

[18]      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 Applicant’s application for an order under s.789FF

has no reasonable prospect of success.

[19]      Each case of this kind will turn on its own peculiar facts. It should not be assumed that

it will always be appropriate to dismiss an application for an order under s.789FF because the

worker has been dismissed. In some circumstances it may be appropriate to adjourn a

proceeding instead of dismissing it or to proceed with determining the other preconditions in

s.789FF before considering the question of risk of continued bullying at work.

[20]      I have given consideration to both these possible courses of action but I have

concluded that neither course is appropriate in the present circumstances. If I were to proceed

to determine the matter, I would likely face the same question concerning risk in a few

months. At that point the conclusion would be the same. The efficient administration of

justice is not served by this course and resources of the parties would be unnecessarily

expended.

[21]      An adjournment for a period that is both lengthy and presently indeterminate is also

not conducive to the efficient administration of justice. Cases of this kind should be

determined with reasonable expedition. Certainly, the legislature had this in mind by

mandating that the Commission start dealing with such an application within 14 days after the
[2016] FWC 716

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application is made. Moreover, in the event that the Applicant succeeds before the Federal

Circuit Court and he is reinstated, he is free to make another application if he believes there is

a risk of continued bullying and it seems to me, there is nothing to prevent the Applicant

relying on the conduct currently alleged in this application to make good the other

jurisdictional fact requirements. As such, no real prejudice is suffered by the Applicant, and

there will be no material delay in dealing with a new application on that basis when compared

to the delay in determining this application if it were adjourned, pending the hearing and

determination of the Federal Circuit Court proceeding.

[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 PR576691.

DEPUTY PRESIDENT

Appearances:

Mr J. Willis in person.

Ms C. Symons of Counsel on behalf of the Respondent.

Hearing details:

Melbourne.

2016.

January 28.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR576690>

1

Section 789FF(1)(b).

2

(2010) 241 CLR 181.

3

Ibid at [59] – [60].

4

Section 789FE(1).