Jay Cavanagh

[2020] FWC 4321

[2020] FWC 4321

FAIR WORK COMMISSION

DECISION

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

Jay Cavanagh
(AB2020/421)

DEPUTY PRESIDENT CLANCY MELBOURNE, 17 AUGUST 2020

Application for an FWC order to stop bullying – whether application for order has no reasonable prospect of success – application to dismiss granted.

[1] In making application to the Fair Work Commission on 26 June 2020, Mr Jay Cavanagh (the Applicant) sought an order to stop bullying pursuant to s.789FC of the Fair Work Act 2009 (the Act). The Applicant alleges that he was bullied at work by his Sales Manager during his employment with Wagners Industrial Services Pty Ltd (the Respondent).

Procedural Background

[2] The Applicant’s employment was terminated by the Respondent on 1 July 2020.

[3] As a result, I caused correspondence to be emailed to the parties 8 July 2020 directing the Applicant to advise me by 4:00PM on 10 July 2020 whether or not he intended to pursue his application for an order to stop bullying despite no longer being employed by the Respondent. Further, I directed that if the Applicant intended to pursue his application for an order to stop bullying, he was to make submissions as to how he says he will continue to be bullied at work and why his application for an order to stop bullying should not be dismissed by no later than 4:00PM on 20 July 2020.

[4] Neither the Applicant nor anyone purporting to act on his behalf has responded to the Directions I made on 8 July 2020.

Legislative Framework

[5] Section 789FC of the Act sets out when a person can make an application to the Commission for an order to stop bullying:

“Application for an FWC order to stop bullying

(1) 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.

(2) For the purposes of this Part, worker has the same meaning as in the Work Health and Safety Act 2011, but does not include a member of the Defence Force.

Note: Broadly, for the purposes of the Work Health and Safety Act 2011, a worker is an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer.

(3) The application must be accompanied by any fee prescribed by the regulations.

(4) The regulations may prescribe:

(a) a fee for making an application to the FWC under this section; and

(b) a method for indexing the fee; and

(c) the circumstances in which all or part of the fee may be waived or refunded.”

[6] Section 789FD of the Act sets out the requirements for a person to have been bullied at work and relevantly provides:

“When is a worker bullied at work?

(1) A worker is bullied at work if:

(a) while the worker is at work in a constitutionally-covered business:

(i) an individual; or

(ii) a group of individuals;

repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and

(b) that behaviour creates a risk to health and safety.

(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner…”

[7] Section 789FF of the Act then sets out when the Commission may make an order to stop bullying:

“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.

(2) In considering the terms of an order, the FWC must take into account:

(a) if the FWC is aware of any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another person or body--those outcomes; and

(b) if the FWC is aware of any procedure available to the worker to resolve grievances or disputes--that procedure; and

(c) if the FWC is aware of any final or interim outcomes arising out of any procedure available to the worker to resolve grievances or disputes--those outcomes; and

(d) any matters that the FWC considers relevant.”

Consideration

[8] The Applicant’s employment has been terminated. He is no longer “at work” for the Respondent. In my correspondence to the parties dated 8 July 2020 when outlining my Directions, I raised the question as to whether, in such circumstances, the Applicant will be able to succeed in persuading the Commission that it is appropriate that an order to be made to prevent him from being bullied at work. I put it to the parties that if the Applicant is no longer working for the Respondent, it would seem there is no continuing risk of bullying occurring in the workplace and as such, the Applicant’s application for orders to stop bullying occurring in the workplace and as such, the Applicant’s application for orders to stop bullying would seem unlikely to succeed. I advised the parties that under s.587 of the Act, an application that has no reasonable prospects of success may be dismissed by the Commission.

[9] Despite my Directions, the Applicant has not confirmed whether or not he intends to pursue his application for an order to stop bullying despite no longer being employed by the Respondent. Further, the Applicant has not responded to the direction that he make submissions as to how he says he will continue to be bullied at work and why his application for an order to stop bullying should not be dismissed.

[10] In Bibawi v Stepping Stone Clubhouse Inc t/a Stepping Stone & Others, 1 the Full Bench, when dealing with a dispute as to whether an Applicant was a “worker” in an application made pursuant to s.789FC of the Act, stated:

“[17] Section 587(1)(a) of the FW Act empowers the Commission to dismiss an application where it has not been made in accordance with this Act, and s 587(1)(c) similarly empowers dismissal where an application has no reasonable prospects of success. This power may be exercised summarily - that is, an application may be dismissed pursuant to s 587(1) prior to a full hearing being conducted. Full Bench decisions such as Townsley v State of Victoria (Department of Education & Early Childhood Development) and Toma v Workforce Variable Pty Ltd have emphasised that the power to dismiss applications summarily should be exercised cautiously and sparingly, consistent with the principle stated by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW):

“… the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion… the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action … is clearly demonstrated.” (references omitted)

[11] As outlined above, the relevant remedy in respect of applications for an order to stop bullying is an order which the Commission considers appropriate “to prevent the worker from being bullied at work by the individual or group”. 2 The discretion to make an order to stop bullying is only exercisable if the Commission is satisfied that:

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

•  there is a risk that the worker will continue to be bullied at work by the individual or group. 3 (my emphasis)

[12] Thus, before issuing an order under s.789FF, the Commission must be satisfied there is a risk that the worker will continue to be bullied at work. If the Commission is not satisfied there is a risk that the worker will continue to be bullied at work by the individual or group, the application must fail.

[13] Therefore, in this case, even if I was satisfied the Applicant has been bullied at work by an individual or group of individuals, I must also be satisfied there is a risk that he will continue to be bullied at work by the individual or group of individuals and that it is appropriate to make an order to prevent him from being bullied at work. Absent the existence of a risk of continued bullying at work by the individual or group, there is an absence of power to make an order. 4

[14] The material before me clearly establishes that the Applicant is not at work for the Respondent. There is nothing before me to suggest this situation will change. As such, I consider I am able to reach a definite and certain conclusion that the Applicant cannot currently succeed in establishing there is a risk that he will continue to be bullied at work. On the material before me therefore, I am satisfied the pre-requisites for the making of an order pursuant to s.789FF(1) of the Act cannot be met and that the Application has no reasonable prospects of success.

[15] Section 587 of the Act provides:

“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.”

[16] The Explanatory Memorandum to the Fair Work Bill 2008 outlined the following in relation to what would become s.587 of the Act:

“Clause 587 – Dismissing applications

2271. Subclause 587 allows FWA to dismiss, on its own initiative or on application, an application which is not made in accordance with the Bill, or that is frivolous, vexatious or has no reasonable prospects of success.

2272. However FWA may not dismiss an application to deal with a dispute involving a dismissal under clause 365 or clause 773 on the grounds that the application is frivolous, vexatious or has no reasonable prospects of success.

2273. This provision is not intended to limit FWA’s power to dismiss applications for other reasons, such as failure to meet jurisdictional requirements.”

[17] It is clear, therefore, that s.587 of the Act vests in the Commission a broad discretionary power to dismiss an application before it. I am satisfied that the Applicant’s application for an order under s.789FF has no reasonable prospects of success. I have decided it is appropriate that I should exercise my discretion and dismiss his application. In reaching this decision, I have taken into account that there is nothing before me to suggest that the Applicant is challenging the termination of his employment and I have formed the view that by failing to engage with my Directions, the Applicant has indicated a lack of intent to pursue his application made pursuant to s.789FC of the Act.

Conclusion

[18] On the material before me, I consider the pre-requisites for the making of any orders pursuant to s.789FF(1) of the Act cannot presently be met because there is no risk that the Applicant will continue to be bullied at work. I am persuaded that the application the Applicant has made has no reasonable prospects of success and I am satisfied it is appropriate in the circumstances of this case to exercise my discretion pursuant to s.587(1)(c) of the Act to dismiss the Applicant’s anti-bullying application.

[19] An order dismissing the anti-bullying application of the Applicant will be issued along with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR721880>

 1   [2019] FWCFB 1314.

 2   Fair Work Act 2009 (Cth) s.789FF.

 3   Fair Work Act 2009 (Cth) ss.789FF(1)(b)(i) and (ii).

 4   Willis v Capital Radiology Pty Ltd T/A Capital Radiology; Ms Peita Carroll; Ms Marie Gibson; Mr Dominik Kucera (Willis) [2016] FWC 716 at [15].