Joe Cai v Serco Citizen Services Pty Ltd, Christopher Maassen

[2022] FWC 3162

[2022] FWC 3162

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Joe Cai
v

Serco Citizen Services Pty Ltd, Christopher Maassen

(SO2022/460)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 30 NOVEMBER 2022

Application for an FWC order to stop bullying

1. This is an edited version of my decision delivered ex tempore and recorded in transcript on 18 November 2022. I ordered that the application be dismissed.[1]

1. Mr Joe Cai has made an application under s 789FC of the Fair Work Act 2009 (Act) for an order that bullying stop or not occur. He made that application on 19 September 2022. In order to deal with the application, I made some directions for the parties to file and exchange outlines of submissions and statements of evidence on which each party intended to rely, and I have fixed the matter for hearing which is scheduled for 8 December 2022.

1. The application is made against Serco Citizens Services Proprietary Limited (Serco), as well as naming an individual, Mr Chris Maassen, who at the relevant time was the operations manager of the first-named respondent, Serco. Since making those directions, on 12 October 2022 the first respondent, Serco, advised the applicant by letter sent by email that his employment will be terminated with immediate effect and that he would be paid two weeks’ pay in lieu of notice.

1. On 24 October 2022, Serco and Mr Maassen applied for an order dismissing Mr Cai’s bullying application, pursuant to s 587(3) because it had, or now has, no reasonable prospects of success. I subsequently directed the parties to file and exchange written submissions in support and in opposition of the application made by Serco and Mr Maassen.

1. There is no dispute that as at 12 October 2022 the employment relationship between the applicant and the first respondent, Serco, came to an end. Indeed, the applicant has since made application pursuant to s 394 of the Act seeking an unfair dismissal remedy in which he alleges that his dismissal by Serco was unfair. He seeks, amongst other remedies, an order for reinstatement.

1. He has been advised that his application had been listed for a conciliation conference before a staff member of the Commission on 22 November 2022 and the applicant does not contest the fact that he has been dismissed. Section 587 provides the Commission with a discretion to dismiss an application on several grounds, relevantly, if the Commission is satisfied that an application has no reasonable prospects of success.

1. It is sufficient for present purposes to observe that a conclusion that an application has no reasonable prospects of success is a conclusion that ought not be reached lightly, that some caution ought be exercised in circumstances where an application is made and there should be satisfaction that the application is either manifestly untenable,  groundless,  so lacking in merit or substance as to not be reasonably arguable; or material matters which condition the relief sought by an applicant cannot on the facts be made out.

1. Relevantly, I refer to that which the High Court said in Spencer v Commonwealth of Australia,[2] about the meaning of the phrase, ‘no reasonable prospects,’ in the context of a similar provision in section 31A of the Federal Court of Australia Act 1976.

1. Specifically, I rely, without reading them, on what their Honours had to say at paragraphs 59 through 60. But in substance what the High Court was suggesting in those paragraphs is that one should not make the mistake of concluding that the proceeding has no reasonable prospects of success only if it is frivolous, untenable or groundless or faulty and that full expression in the context in which it is used should be given to the phrase.

1. As I have observed in previous cases, I consider that the observations in Spencer as applicable to the phrase, ‘has no reasonable prospects of success,’ as it appears in s 587 of the Act, so that full expression should be given to the phrase and applied, here in the context of the application and the provisions of the Act which govern it. The question whether an application has no reasonable prospects of success in the context of s 587 will necessarily differ depending on when the question is asked.

1. So much is evident from the word, ‘has,’ immediately preceding, ‘no reasonable prospects of success’. So, an application when lodged might have some reasonable prospects of success but as time progresses the circumstances in respect of an application change, the result of which might mean that the application which had some prospects now no longer has any reasonable prospects of success.

1. In this case, the circumstances between the time that Mr Cai made his application on 19 September 2022 and today have changed. His employment has come to an end and so the relevant question is whether the application now has any reasonable prospects of success, and it needs to be answered by reference to the statutory scheme which governs the application that Mr Cai has made.

1. Simply put, the relevant question is whether, upon hearing and determining his application, there is some reasonable prospect that the Commission would make an order that bullying conduct stop or not occur. Section 789FC provides that: “A worker who reasonably believes that he or she has been bullied or sexually harassed at work may apply to the Commission for an order under section 789FF.”

1. Section 789FD contains, relevantly, a definition of when a worker is bullied at work. A condition precedent to the exercise of the jurisdiction is that I need to be satisfied that the person who made the application has been bullied at work by an individual or group of individuals, before considering whether to make an order. So much is also clear from the text of s 789FF(1)(b)(i).

1. As I explained earlier during the hearing, for present purposes I can assume without deciding that Mr Cai will be able to make out the conduct about which he complains and that I will be satisfied that the conduct is bullying conduct within the meaning of the Act. But as s 789FF(1)(b)(i) makes clear, a second element or a precondition to the making of a stop bullying order is that the Commission needs to be satisfied that there is a risk that the worker will continue to be bullied at work by the individual or group.

1. That, in substance, is the central issue in this proceeding. The Commission is unable to exercise any power to make an order unless it is satisfied of both elements. Mr Cai is no longer employed by Serco; the employment relationship ended on 12 October 2022. Mr Cai is seeking a remedy in relation to his dismissal and there is a possibility that if he is successful in that remedy application that he will be reinstated.

1. But in my judgment, notwithstanding that there is a conciliation conference next week, the prospect of the applicant obtaining reinstatement before or by the time that this matter is scheduled for hearing is remote. Ms Tran, appearing for Serco, has today told me, and I accept, that Serco will vigorously defend the applicant’s unfair dismissal remedy application.

1. Consequently, any issue of the possibility of reinstatement is speculative and certainly not likely to be resolved by the time I come to consider this matter in early December 2022. As things presently stand, the circumstances are not likely to change by the time I come to hear this matter, Mr Cai is not at work and will not be a work for the foreseeable future, and so it is inevitably the case that I will conclude that there is no risk that Mr Cai will continue to be bullied at work by an individual or group.

1. It necessarily follows from that conclusion that the power to make, or the power to exercise a discretion to make, the order will not be enlivened because both elements of the matters about which the Commission must be satisfied in s 789FF(1)(b)(i) cannot be made out. In those circumstances I am satisfied that Mr Cai’s application for a stop bullying order has no reasonable prospect of success.

1. The power to dismiss is discretionary, so that the conclusion that an application has no reasonable prospects of success does not necessarily result in dismissal of the application. Although, such a conclusion is both a precondition and a discretionary consideration which may favour the exercise of the discretion to dismiss.

1. It is open to me to adjourn this application at least until conciliation between the parties has occurred next week. However, given the express attitude of Serco and the unlikelihood of conciliation in any event resulting in a reinstatement, I do not consider the fact that there is a conciliation next week is a matter that should delay the determination of this application.

1. Nor am I persuaded that I should adjourn this application or the substantive application pending the hearing and determination of Mr Cai’s unfair dismissal remedy application. That is a matter that is likely not to be determined until a hearing can occur sometime next year and thereafter a decision issued and, in any event, it presupposes that Mr Cai will succeed both as to his allegation that his dismissal was unfair and that that conclusion will result in his reinstatement.

1. The Commission is required to act, amongst other things, quickly and fairly and that requires a consideration of the position of both parties. It seems to me that nothing is lost to Mr Cai if I do not adjourn this application and I simply exercise my discretion to dismiss the bullying application because, as I have previously stated and as I stated earlier this morning,  if Mr Cai succeeds in obtaining reinstatement either by agreement with Serco or by order of this Commission, he will be at liberty to make another application for an order to stop bullying if he remains concerned about an ongoing risk of bullying. In any such application, Mr Cai will be able to rely on the conduct about which he now complains in support of that application to establish that he has been bullied at work.

1. Taking all these matters into account, I am satisfied that Mr Cai’s application has no reasonable prospects of success and I am satisfied that I should exercise my discretion for the reasons stated to dismiss the application. I order that Mr Cai’s application for an order to stop bullying in SO2022/460 be dismissed, and an order in writing will be issued later today.

DEPUTY PRESIDENT

Appearances:

Mr Joe Cai, for himself as the applicant
Ms Lisa Tran, as solicitor employed by the respondent

Hearing details:

2022
Melbourne
18 November 2022

[1] PR74737

[2] (2010) 241 CLR 181

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