Kim Hodgkins

[2019] FWC 5589

[2019] FWC 5589

FAIR WORK COMMISSION

DECISION

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

Kim Hodgkins
(AB2018/679)

DEPUTY PRESIDENT KOVACIC CANBERRA, 14 AUGUST 2019

Application for an FWC order to stop bullying – application by the Respondent for the application to be dismissed on the basis that it has no reasonable prospects of success – the Respondent’s application granted – application for an order to stop bullying dismissed.

[1] On 29 October 2018 Ms Kim Hodgkins (the Applicant) filed an application under s.789FC of the Fair Work Act 2009 (the Act) seeking an order to stop bullying in accordance with Part 6-4B of the Act. Ms Hodgkins’ application has been the subject of two previous decisions 1, with the background to Ms Hodgkins’ application set out in the first of those decisions.

[2] On 20 June 2019 the Australian Financial Security Authority (the Respondent) filed an application with the Fair Work Commission (the Commission) requesting that Ms Hodgkins’ application be dismissed in accordance with s.587(1)(c) of the Act on the basis that it had no reasonable prospects of success as Ms Hodgkins’ employment had been terminated on 20 May 2019 as a result of her having accepted an offer of voluntary redundancy.

[3] Against that background, on 24 June 2019 the Commission wrote to Ms Hodgkins in the following terms:

“On 20 June 2019 the Australian Government Solicitor filed an application on behalf of the Australian Financial Security Authority (AFSA) that your bullying application be dismissed on the basis that it has no reasonable prospects of success as your employment with AFSA ceased on 20 May 2019 as a result of you having accepted an offer of voluntary redundancy.

My purpose in writing to you is to seek an indication as to whether you intend to press your bullying application or alternatively discontinue the application. I would appreciate your advice in this regard by close of business on Tuesday, 2 July 2019.

By way of background, the Commission has in a number of instances dismissed bullying applications in circumstances where the applicant has either been dismissed or resigned from their employment (e.g. see Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2014] FWC 3408 where the Commission found that, as the employment relationship had ended, there was no power to make an order to stop bullying and, as a consequence, the application had no reasonable prospect of success). This is because a key consideration for the making of an anti-bullying order is that there is a risk that the worker will continue to be bullied at work. Once the employment relationship has ended there would not usually be a risk that the employee will continue to be bullied at work.

If you wish to press your bullying application, directions will be issued to deal with AFSA’s application that your bullying application be dismissed. Alternatively, if your preference is to discontinue your bullying application please complete and return the attached Form F50 – Notice of discontinuance as soon as possible.”

[4] In the absence of a response from Ms Hodgkins the Commission sent an email to Ms Hodgkins on 4 July 2019 requesting that she respond to the above letter by close of business on 5 July 2019. No response was received prompting the Commission to send Ms Hodgkins a text message on 8 July 2019 foreshadowing its intention to list the Respondent’s application for mention and directions on 10 July 2019. That text message was followed up with two unsuccessful attempts to contact Ms Hodgkins by telephone on 9 July 2019, with a voicemail message left on the first occasion. The mention and directions hearing did not proceed as Ms Hodgkins did not contact the Commission.

[5] In subsequent developments, on 17 July 2019 the Commission again wrote to Ms Hodgkins regarding the Respondent’s application. The letter read as follows:

“I wrote to you on 24 June 2019 seeking an indication as to whether you intended to press your bullying application or alternatively discontinue your application in light of the application made by the Australian Financial Security Authority (AFSA) on 20 June 2019 that your bullying application be dismissed as your employment with AFSA ceased on Monday, 20 May 2019.

In the absence of a response from you on Monday, 8 July 2019 my chambers emailed you, notifying you of my intention to list the matter for a mentions/directions hearing on Wednesday, 10 July 2019. My chambers requested a response from you by close of business Monday, 8 July 2019. A text message was also sent to your nominated contact number. However, no response from you has been received. Beyond this, on Tuesday, 9 July 2019, my chambers made two further unsuccessful attempts to contact you by phone, with a further email sent that same day notifying AFSA and yourself that the proposed telephone hearing would not be scheduled as your availability could not be ascertained.

Against that background, I write again to provide you with a further opportunity to make any submissions you may wish in respect of the AFSA’s abovementioned application. I would appreciate it if any submission you may wish to make in respect of AFSA’s application could be provided to my chambers by close of business on Wednesday, 24 July 2019. In the absence of any submissions being provided AFSA’s application will be determined based on the material before the Commission. If you wish to be heard in respect of the AFSA’s application please advise my chambers of that when you forward any submissions and the matter will be listed for hearing.

As outlined in my correspondence of 24 June 2019, the Commission has in a number of instances dismissed bullying applications in circumstances where the applicant has either been dismissed or resigned from their employment (e.g. see Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2014] FWC 3408 where the Commission found that, as the employment relationship had ended, there was no power to make an order to stop bullying and, as a consequence, the application had no reasonable prospect of success). This is because a key consideration for the making of an anti-bullying order is that there is a risk that the worker will continue to be bullied at work. Once the employment relationship has ended there would not usually be a risk that the employee will continue to be bullied at work.

Alternatively, if your preference is to discontinue your bullying application please complete and return the attached Form F50 – Notice of discontinuance as soon as possible.” (Emphasis as per original)

[6] Ms Hodgkins has not subsequently contacted the Commission or otherwise responded to the above letter. Accordingly, as foreshadowed in the Commission’s most recent correspondence, the Respondent’s application will be determined based on the material before the Commission.

The statutory framework

[7] The relevant provisions of the Act are set out below.

“789FE FWC to deal with applications promptly

(1) ...

(2) However, the FWC may dismiss an application under section 789FC if the FWC considers that the application might involve mattersthat relate to:

(a) Australia’s defence; or

(b) Australia’s national security; or

(c) …

Note: For another power of the FWC to dismiss applications under section 789FC, see section 587.

789FF 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.

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.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) ...

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

Consideration of the issues

[8] Under s.789FF of the Act the Commission has the discretion to make any order it considers appropriate (other than an order requiring the payment of a pecuniary amount) to prevent the worker from being bullied at work where it is satisfied that:

(i) the worker has been bullied at work; and

(ii) there is a risk that the worker will continue to be bullied at work.

[9] As previously mentioned, on 20 June 2019 the Respondent made an application that Ms Hodgkins’ application be dismissed on the basis that it had no reasonable prospects of success as Ms Hodgkins’ employment had been terminated on 20 May 2019 as a result of her having accepted the Respondent’s voluntary redundancy offer.

[10] Section 789FE(2) of the Act sets out some of the circumstances in which the Commission may dismiss an application made under s.789FC of the Act. None of those circumstances exist in this case. However, the legislative Note at s.789(2) of the Act states that “[f]or another power of the FWC to dismiss applications under section 789FC, see section 587.”

[11] Section 587(1)(c) of the Act provides that the Commission may dismiss an application if “the application has no reasonable prospects of success.”

[12] The meaning and application of the phrase “no reasonable prospects of success” was canvassed by Deputy President Gostencnik in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank; Bianca Haines (ANZ) 2. In ANZ the applicant, Mr Shaw, was dismissed prior to his application under s.789FC of the Act being determined by the Commission. The implications of this were set out in Deputy President Gostencnik’s decision in the following terms:

“[16] ...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. I see no reason in the circumstances why I should not exercise my discretion to dismiss Mr Shaw’s application given my finding and I do so.” 3

[13] In circumstances where Ms Hodgkins is no longer employed by the Respondent, I do not consider that there is a risk that she will continue to be bullied at work. Further, there is no material before the Commission suggesting otherwise. Against that background, I see no reason to depart from the approach adopted in ANZ. This supports the Commission granting the Respondent’s application.

Conclusion

[14] For the reasons outlined above I have decided to dismiss Ms Hodgkins’ application on the basis that it has no reasonable prospects of success. An order to that effect will be issued in conjunction with this decision

Printed by authority of the Commonwealth Government Printer

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 1   [2019] FWC 3344 and [2019] FWC 3826

 2   [2014] FWC 3408

 3   Ibid at [16]-[17]