Karishma Mudliar
[2020] FWC 4328
•17 AUGUST 2020
| [2020] FWC 4328 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Karishma Mudliar
(AB2020/348)
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 24 May 2020, Mrs Karishma Mudliar (the Applicant) sought an order to stop bullying pursuant to s.789FC of the Fair Work Act 2009 (the Act). The Applicant alleges that she was bullied at work by two colleagues during her employment with Point of Care Diagnostics (the Respondent).
Procedural Background
[2] The Applicant’s employment was terminated by the Respondent on 4 June 2020.
[3] On 5 June 2020, the Applicant made an application pursuant to s.394(1) of the Act for an unfair dismissal remedy (the unfair dismissal application).
[4] On 9 June 2020, the Respondent filed its Form F73 – Response from an employer/principal to an application for an order to stop bullying which confirmed the Applicant’s employment had been terminated by the Respondent.
[5] As a result, I caused correspondence to be emailed to the parties on 12 June 2020 directing the Applicant to advise me by 4:00PM on 15 June 2020 whether or not she intended to pursue her 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 her application for an order to stop bullying, she was to make submissions as to how she says she will continue to be bullied at work and why her application for an order to stop bullying should not be dismissed by no later than 4:00PM on 29 June 2020.
[6] On 17 June 2020, the Applicant discontinued the unfair dismissal application and made a further application pursuant to s.365 of the Act for a general protections (involving dismissal) application (the general protections application). This is listed for a Commission Staff conciliation on 21 August 2020.
[7] Neither the Applicant nor anyone purporting to act on her behalf has responded to the Directions I made on 12 June 2020.
Legislative Framework
[8] 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.”
[9] 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…”
[10] 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
[11] The Applicant’s employment has been terminated. She is no longer ‘at work’ for the Respondent. In my correspondence to the parties dated 12 June 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 be made to prevent her 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 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.
[12] Despite my Directions, the Applicant has not confirmed whether or not she intends to pursue her 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 she make submissions as to how she says she will continue to be bullied at work and why her application for an order to stop bullying should not be dismissed.
[13] 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)
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)
[14] 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.
[15] 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 she 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 her 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
[16] The Respondent alleges the Applicant was terminated for serious misconduct. The Applicant seeks reinstatement. The Applicant may make a general protections court application in the future and such an application may be listed for hearing at some later time and may subsequent to that, at some point even further in the future, be the subject of a determination by the Federal Court or the Federal Circuit Court. Depending on the outcome, there may or may not be an order for reinstatement. It is clear that the prospect of the Applicant being at work for the Respondent, and at risk of continuing bullying, is currently hypothetical. I am not persuaded that this position will change in the foreseeable future.
[17] The material before me clearly establishes that the Applicant is not and will not for the foreseeable future be at work for the Respondent. 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 she 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.
[18] 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.”
[19] 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.”
[20] 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 her application. In reaching this decision, I have had regard to the following:
a) The Explanatory Memorandum to the Fair Work Amendment Bill 2013, when referring to what would become Part 6-4B of the Act, outlines repeatedly the imperative that bullying matters be responded to and dealt with quickly; 5
b) Section 789FE of the Act reflects this imperative by requiring the Commission to start dealing with an application within 14 days after an application is made;
c) The Explanatory Memorandum also outlines that the focus of the anti-bullying jurisdiction is on resolving the matter in question and enabling normal working relationships to resume, i.e. it is a forward-looking jurisdiction; 6
d) It was the intention of Parliament that Part 6-4B of the Act provide a mechanism for the quick and inexpensive resolution of anti-bullying matters 7 and this weighs against proceedings that put the parties to unnecessary expense and/or adjournments of an indeterminate duration;
e) From this imperative for an early and quick response so that normal working relationships can resume, it can be concluded that an anti-bullying application should be resolved as expeditiously as possible, with expense to the parties kept to a minimum;
f) If the Commission was to proceed to hear and determine this Application and the question of whether the Applicant has been bullied at work now, despite there currently being no risk that she will continue to be bullied at work, the parties would be put to unnecessary effort and expense for the same conclusion in a few months’ time. It would also be the case that the parties would be put to unnecessary effort and expense if the Applicant is not ultimately successful in securing an order for reinstatement through a general protections court application;
g) In the alternative, a prolonged adjournment of an anti-bullying application until such time as it might be established that there is a risk a worker will continue to be bullied at work serves no apparent purpose and would not be consistent with the Parliament’s intention that the jurisdiction provide a quick response. Therefore, such an adjournment should only sparingly be entertained;
h) Should the Applicant eventually succeed in securing an order for reinstatement, if indeed she ends up pursuing this as a remedy, she will not be barred from making another anti-bullying application if she considers there is a risk of continued bullying at that time; and
i) By failing to engage with my Directions, the Applicant has indicated a lack of intent to pursue her application made pursuant to s.789FC of the Act.
Conclusion
[21] 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.
[22] Should the Applicant eventually secure a return to the work with the Respondent and at that point still hold the concern that there is a risk of continued bullying at work, she will be free to make another anti-bullying application. Indeed, there is no bar to her making a fresh application and nor will she be prevented from relying on the allegations she has made in this anti-bullying application to make good the requirement in s.789FF(1)(b)(i) of the Act.
[23] 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
<PR721892>
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].
5 Explanatory Memorandum to the Fair Work Amendment Bill 2013 at page 9.
6 Ibid at page 30.
7 Ibid at page 9.
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