Kelson Anthony KnowlesvInghams Enterprises Pty Ltd, Kaye Teaho, Leah Tekani, Shahn Kelly, David Yardley, Paula Gernhoefer, Roland Mackay, Darren Jeffrey

[2021] FWC 6373

[2021] FWC 6373

FAIR WORK COMMISSION

DECISION

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

Kelson Anthony Knowles
v
Inghams Enterprises Pty Ltd, Kaye Teaho, Leah Tekani, Shahn Kelly, David Yardley, Paula Gernhoefer, Roland Mackay, Darren Jeffrey
(AB2020/802, AB2021/22 & AB2021/325)

COMMISSIONER HUNT BRISBANE, 17 NOVEMBER 2021

Application for an order to stop bullying.

[1] On 30 November 2020, Mr Kelson Knowles (Mr Knowles) made an application pursuant to s.789FC of the Fair Work Act 2009 (the Act) to the Fair Work Commission (the Commission) for an order to stop bullying (First Application), AB2020/802. Mr Knowles was employed by Inghams Enterprises Pty Ltd (Inghams) at the time the First Application was made. Mr Knowles sought for the Commission make an order to stop bullying to be made against Ms Kaye Teaho, Supervisor, and Ms Leah Tekani, Team Leader.

[2] A telephone conference was listed for 21 January 2021.

[3] On 16 January 2021, Mr Knowles made a further application pursuant to s.789FC of the Act to the Commission for an order to stop bullying (Second Application), AB2021/22 involving Inghams. Mr Knowles sought for the Commission make an order to stop bullying to be made against the following persons named; Ms Shahn Kelly, Mr David Yardley, Ms Paula Gernhoefer, Mr Roland Mackay, and Mr Darren Jeffrey.

[4] The Second Application was not allocated to me until 22 January 2021, and therefore the telephone conference of 21 January 2021 largely consisted of discussion regarding the allegations against Ms Teaho and Ms Tekani.

[5] Mr Knowles did not provide the full names of all five persons named in the Second Application when he made it. On 27 January 2021, Inghams supplied the full names and contact details of the five persons named so that the Second Application could be served upon them.

March 2021 Hearing

[6] The First Application and Second Application were heard before me on 17 and 18 March 2021. Mr Knowles attended and gave evidence. Inghams and the Persons Named were granted leave to be represented by Ms Peta Willoughby of Counsel, instructed by Ms Nicole Visedo, Senior Workplace Relations Consultant, FCB Group. I granted leave pursuant to s.596(2)(a) as I considered the matter to be complex, given the nature of the allegations against the persons named and there being so many persons named.

[7] Following the hearing I reserved my decision in the First Application and the Second Application.

Third application

[8] On 12 June 2021, Mr Knowles made another application, (the Third Application), AB2021/325. The Third Application raised further allegations against Mr Mackay and was the subject of a hearing before me on 30 August 2021.

Decision reserved

[9] Following the hearing on 30 August 2021, the decisions in all three applications were reserved.

Relevant legislation

[10] A worker who reasonably believes that he or she has been bullied at work may apply to the Commission for an order to stop bullying. Section 789FC of the Act provides:

“789FC Application for an FWC order to stop bullying or sexual harassment

(1) A worker who reasonably believes that he or she has been bullied or sexually harassed 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.”

[11] Section 789FD of the Act sets out when a worker has been bullied at work, as below:

“789FD When is a worker bullied at work or sexually harassed 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.

(2A) A worker is sexually harassed at work if, while the worker is at work in a constitutionally‑covered business, one or more individuals sexually harasses the worker.

(3) If a person conducts a business or undertaking (within the meaning of the Work Health and Safety Act 2011) and either:

(a) the person is:

(i) a constitutional corporation; or

(ii) the Commonwealth; or

(iii) a Commonwealth authority; or

(iv) a body corporate incorporated in a Territory; or

(b) the business or undertaking is conducted principally in a Territory or Commonwealth place;

then the business or undertaking is a constitutionally-covered business.”

[12] The circumstances in which the Commission may make orders to stop bullying are set out in s.789FF of the Act, as produced below:

“789FF FWC may make orders to stop bullying or sexual harassment

(1) If:

(a) a worker has made an application under section 789FC; and

(b) either or both of the following apply:

(i) the FWC is satisfied that the worker has been bullied at work by an individual or a group of individuals, and the FWC is satisfied that there is a risk that the worker will continue to be bullied at work by the individual or group;

(ii) the FWC is satisfied that the worker has been sexually harassed at work by one or more individuals, and the FWC is satisfied that there is a risk that the worker will continue to be sexually harassed at work by the individual or individuals;

then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to:

(c) if subparagraph (b)(i) applies—prevent the worker from being bullied at work by the individual or group; or

(d) if subparagraph (b)(ii) applies—prevent the worker from being sexually harassed at work by the individual or individuals; or

(e) if subparagraphs (b)(i) and (ii) apply:

(i) prevent the worker from being bullied at work by the individual or group; and

(ii) prevent the worker from being sexually harassed at work by the individual or individuals.

(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.”

Notification of the termination of Knowles’ employment with Inghams

[13] On 10 November 2021, correspondence was received from FCB Group, advising that Mr Knowles is no longer employed by Inghams. A request was made for the Commission to dismiss the three applications on account of there being no risk that Mr Knowles will continue to be bullied at work, as required by s.789FF(1)(b)(i) of the Act.

[14] On 11 November 2021, correspondence was sent from my chambers to the parties, advising that the decision in the three matters was being prepared for publication, however, in light of the correspondence sent on behalf of Inghams, I inquired as to whether Mr Knowles now wished to withdraw his applications.

[15] Mr Knowles did not reply to the communication sent from my chambers. On 15 November 2021, I invited Inghams to provide evidence of Mr Knowles’ termination, whether by way of dismissal by Inghams, or resignation by Mr Knowles. I informed the parties that upon receiving evidence of Mr Knowles no longer being employed by Inghams, my preliminary view was that I would dismiss the three applications. Mr Knowles was invited to provide any views by 4:00pm, Wednesday, 17 November 2021.

[16] On 17 November 2021, a termination letter dated 10 November 2021 was provided to my chambers, making it clear that Mr Knowles had been dismissed by Inghams on 10 November 2021. Reference was made within the letter to an incident that occurred on 21 October 2021, and a show cause meeting on 5 November 2021.

[17] Mr Knowles did not provide any views or contact my chambers.

Consideration

[18] Pursuant to ss.789FF(1)(b)(i) of the Act, for the Commission to make orders with respect to an application under section 789FC for an order to stop bullying, it must be satisfied that the worker was bullied at work and that there is a risk that the worker will continue to be bullied at work.

[19] The leading authority on the application of s.789FF(1)(b) in analogous cases is Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank; Bianca Haines. 1  In that case Gostencnik DP held that:

“[15] As s. 789FF(b) makes clear, I must be satisfied not only that Mr Shaw has been bullied at work by an individual or group of individuals but also that there is a risk that he will continue to be bullied at work by that individual or group of individuals. Therein lays the difficulty for Mr Shaw. It seems to me that I have no power to make an order to stop bullying unless I can be satisfied relevantly that there is a risk that at work Mr Shaw will continue to be bullied by the individual or group of individuals identified in his application.

[16] It is clear that Mr Shaw is no longer employed by ANZ. The employment relationship has ended. That Mr Shaw is taking steps to seek a remedy in relation to his dismissal and that that may result in reinstatement at some point in the future does not have a bearing on the question that I must answer and is speculative and uncertain. It seems to me clear that there cannot be a risk that Mr Shaw will continue to be bullied at work by an individual or group of individuals identified in his application because Mr Shaw is no longer employed by ANZ and therefore is no longer at work.

[17] It necessarily follows that I do not have power to make an order to stop bullying and, as a consequence, I am satisfied that Mr Shaw’s application has no reasonable prospect of success.”

[20] This position was subsequently affirmed by the Full Bench in Obatoki v Mallee Track Health & Community Services and Others. 2

[21] It is not disputed that Mr Knowles is no longer employed by Inghams. Therefore, there is no present risk that Mr Knowles will continue to be bullied at work, noting that it is not necessary to determine if Mr Knowles was bullied at work in the past. Accordingly, the requirements of s.789FF(1)(b)(i) cannot be satisfied.

[22] Section 587(1) 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.”

[23] In considering all of the circumstances, I am satisfied that there is no risk of Mr Knowles being bullied at work pursuant to s.789FF(1)(b)(i) of the Act. I am also satisfied that as a result, the applications have no reasonable prospects of success and it is appropriate in all of the circumstances to dismiss the applications.

[24] Accordingly, the applications are dismissed under s.587(1)(c) of the Act.

COMMISSIONER

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<PR735898>

 1   [2014] FWC 3408.

 2    [2015] FWCFB 1661 at [16].