Lester Beling v Bayside Resolve T/A Bayside Mediation, Raymond Tyers, Dianne Loveday
[2022] FWCFB 160
•22 AUGUST 2022
| [2022] FWCFB 160 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Lester Beling
v
Bayside Resolve T/A Bayside Mediation, Raymond Tyers, Dianne Loveday
(C2022/3799)
| VICE PRESIDENT CATANZARITI | SYDNEY, 22 AUGUST 2022 |
Appeal against decision [2021] FWC 6575 of Commissioner McKinnon at Melbourne on 9 December 2021 in matter number AB2021/304 – extension of time refused.
Lester Beling (the Appellant) has lodged an appeal under s.604 of the Fair Work Act 2009 (Cth) (the Act) against a decision[1] (the Decision) of Commissioner McKinnon (Commissioner), issued on 9 December 2021, for which permission to appeal is required. The Decision concerned an application for an order to stop bullying brought by Dianne Loveday (the Respondent), pursuant to s.789FC of the Act.
An appeal filed under s.604 of the Act must be filed within 21 calendar days after the date of the decision being appealed against, or within such further time allowed by the Fair Work Commission.[2] The Decision was issued on 9 December 2021, and the prescribed 21-day period ended on 30 December 2021. The Appellant lodged the Form F7 on 30 June 2022, therefore making the application 6 months out of time. Accordingly, this appeal cannot proceed unless the Commission grants the Appellant an extension of time.
The matter was listed for permission to appeal and extension of time. On 6 July 2022, directions were issued for the filing of material and the matter was listed for hearing on 9 August 2022. Mr Beling indicated that he consented to the appeal being determined on the papers without the need for oral submissions at a formal hearing. Accordingly, pursuant to s.607(1) of the Act, the appeal was conducted on the basis of written submissions only.
Decision Under Appeal
Ms Loveday runs a small business from two commercial units she owns at 539 Highett Road, Highett, Victoria (the building). The building is managed by an owner’s corporation that has been dysfunctional for approximately four years. Ms Loveday was having trouble dealing with two other occupants of the building who also run businesses there: Mr Beling and Mr Tyers. She applied to the Commission for orders to stop bullying at work against them.
Mr Beling and Mr Tyers objected to the application and denied that Ms Loveday was bullied at work. Mr Tyers apologised for any distress Ms Loveday has suffered and no longer has much contact with Ms Loveday. Mr Beling said the allegations were nonsense and that he is the one who has been targeted by Ms Loveday. He said Ms Loveday lies and cannot be trusted and made no apology for his conduct toward her.
The Commissioner began by considering whether Ms Loveday was a worker in a constitutionally-covered business, pursuant to s.789FD(3) of the Act. The Commissioner found that Ms Loveday is at work in a constitutionally-covered business when she is carrying out work in the business of Bayside Resolve Pty Ltd trading as Bayside Mediation, a company she owns with her partner. However, the Commissioner found that Ms Loveday is not at work when she is carrying out work for the owner’s corporation, which is a body corporate and is not a constitutionally-covered business. The significance of this distinction is that Ms Loveday was only capable of being bullied at work if the alleged bullying occurred while she was at work in her own business. To this end, the Commissioner noted that Ms Loveday’s participation in the owner’s corporation was a matter of interest to her personally and she was not satisfied that the Commission had jurisdiction to deal with the dispute while Ms Loveday was at work in the owner’s corporation.
Further, the Commissioner found it was within her jurisdiction to deal with the dispute in relation to the alleged bullying that occurred when Ms Loveday and Mr Beling or Mr Tyers were at work in their own business and encountered each other in common areas of the building in the course of that work. It was not enough that the interaction occurred in or around the building, which is the workplace of each of them. To be within the Commission’s jurisdiction, the contact must also have occurred while Ms Loveday was at work in her business.
The Commissioner then turned to consider the allegations of bullying finding that only the following incidents were those within the Commission’s jurisdiction:
1. Ms Loveday was negotiating with another unit owner in the building to buy Unit 4. Mr Beling approached her in the hallway and stated that he could out-bid her if he wanted to, but he would not if Ms Loveday agreed to sell him one of the carparking spaces attached to Unit 4. Ms Loveday said she would sell Mr Beling the car space. She bought Unit 4 and then told him that she had decided not to sell him the car space.
2. When Ms Loveday ran into Mr Beling in common areas of the building or the café downstairs, he is dismissive or tries to intimidate her. This includes letting doors close as she approaches, staring at her and mumbling under his breath.
Turning to the first incident, the Commissioner noted it was not always the case that Ms Loveday and Mr Beling were in conflict. For many years, they had a respectful and cooperative relationship. When Ms Loveday reneged on an agreement to sell him a carpark in 2018, Mr Beling was understandably upset. Rather than finding a way to move forward, Mr Beling became increasingly disrespectful toward Ms Loveday. Ms Loveday has contributed to the conflict at times both by her language and conduct. Ultimately, the Commissioner was not satisfied that Mr Beling’s approach to Ms Loveday to buy a car park from her in connection with the sale of Unit 4 in the building was bullying behaviour. It was a simple exchange, made at a time when Ms Loveday and Mr Beling shared a mutual respect.
Having regard to the second incident, the Commissioner was satisfied that Ms Loveday has been bullied at work in her business by Mr Beling. Finding that since the above incident, Mr Beling’s conduct toward Ms Loveday had been repeatedly unreasonable. The conduct occurred while Ms Loveday was at work in her own business, including in common areas of the building and in the café downstairs. Mr Beling was found to have acted rudely toward Ms Loveday in these encounters, including by letting doors close as she approached and starting at her with the intention of intimidating her, while saying words she could not hear. This behaviour created a risk to Ms Loveday’s health and safety that has materialised through its effect on Ms Loveday, who has had trouble sleeping, feels intimidated, unsettled and scared of encountering Mr Beling in the building.
The Commissioner found that none of the allegations involving Mr Tyers related to work that might be the subject of orders to stop bullying in this case.
The Commissioner was satisfied that there was a risk that the bullying would continue so long as Ms Loveday and Mr Beling both had an interest in the building. The Commissioner therefore ordered:
· Mr Beling act civilly and refrain from using any derogatory or intimidating language, gesture or stance, to or in relation to Ms Loveday; and
· Communication between them relating to the ownership or management of the building be conducted only through the business manager unless otherwise agreed.
Grounds of appeal and submissions
Mr Beling’s grounds of appeal are as follows:
1.The Commission did not and does not have jurisdiction to deal with the matter. Mr Beling submits that the Commission does not have the power to investigate bullying and sexual harassment complaints.
2.Both Mr Beling and Mr Tyers were respondents in the original application and therefore asks why Mr Tyers was not mentioned in the Decision.
3.The Commissioner erred in finding Mr Beling bullied Ms Loveday as he is not a bully and was only standing up for what was right.
Mr Beling submits that the appeal is in the public interest because the Decision has denigrated his name.
Extension of time to file the appeal
It is necessary at the outset to consider whether Mr Beling should be granted an extension of time to file his appeal. The usual principles applying to consideration of an application to extend time to lodge an appeal were summarised by the Full Bench in Jobs Australia v Eland[3] as follows:
“[5] Time limits of the kind in Rule 56 should not simply be extended as a matter of course. There are sound administrative and industrial reasons for setting a limit to the time for bringing an appeal and it should only be extended where there are good reasons for doing so. The authorities indicate that the following matters are relevant to the exercise of the Tribunal’s discretion under Rule 56(2)(c):
·whether there is a satisfactory reason for the delay;
·the length of the delay;
·the nature of the grounds of appeal and the likelihood that one or more of those grounds being upheld if time was extended; and
·any prejudice to the respondent if time were extended.” (footnote omitted)
Taking these matters into account, the exercise of discretion will be guided by a consideration of whether, in all the circumstances, the interests of justice favour Mr Beling being granted an extension of time within which to lodge his appeal.[4]
Reason for delay
Mr Beling has not provided any reason for the delay in filing his appeal. We consider that the absence of a satisfactory reason for the delay weighs against the grant of an extension of time.
Length of delay
The delay of six months in filing the appeal is quite significant, particularly having regard to the fact the Commissioner’s orders have been operational since 10 December 2021. We find that this weighs against the grant of an extension of time.
Nature of the appeal grounds and likelihood that they would be upheld if time were extended
We will consider each of the Appellant’s grounds of appeal as follows:
In relation to the first ground of appeal, Mr Beling submits that the Commissioner lacked jurisdiction to deal with the matter as the Commission does not have the power to investigate bullying and sexual harassment complaints. The question of the Commission’s jurisdiction was a matter that the Commissioner expressly dealt with at [4]–[7] of the Decision. The Commissioner correctly identified that for the Commission to have jurisdiction, the incidents of bullying must have occurred while Ms Loveday was at work in a constitutionally-covered business. The Commissioner found that work for the owner’s corporation did not meet this definition, however work performed in Ms Loveday’s own business was sufficient. Furthermore, while Ms Loveday submitted eight separate incidents of alleged bullying, only two were found to be within the Commissions jurisdiction and therefore only these incidents were considered.[5] We find no error in the Commissioner’s findings on the Commission’s jurisdiction to hear the matter.
Ground two alleges that Mr Tyers was not mentioned in the decision. We reject this submission and find that Mr Tyers was mentioned in the Decision. The Commissioner considered the incidents of alleged bullying concerning to Mr Tyers and found that none of incidents related to work that might be the subject of orders to stop bullying.[6] The Commissioner was ultimately not satisfied that Ms Loveday had been bullied at work in her business by Mr Tyers. The Commissioner applied the correct legal principles and these findings were reasonably open to her on the evidence.
Finally, ground three alleges that the Commissioner made a significant error of fact by finding that Mr Beling bullied Ms Loveday. The Appellant submits that he is not a bully and was only standing up for what is right. At [16]–[22] of the Decision, the Commissioner considered whether Mr Beling bullied Ms Loveday and made the following findings:
“[19] I am satisfied that since that time, Mr Beling’s conduct toward Ms Loveday in and around the building has repeatedly been unreasonable. The conduct has occurred while Ms Loveday was at work in her own business, including in common areas of the building and in the café downstairs. I find that Mr Beling has acted rudely toward Ms Loveday in these encounters, including on occasions by letting doors close as she approached. I find that Mr Beling has stared at Ms Loveday with the intention of intimidating her, while saying words she could not hear…
[22] I am satisfied that Ms Loveday has been bullied at work in her business by Mr Beling.”
The Commissioner’s approach to these findings was orthodox and she dealt with the evidence that was before her and made findings of fact based on the evidence.
Therefore, we are not satisfied that Mr Beling has advanced an arguable case that there was any error in the Commissioner’s Decision. For the above reasons, we consider that Mr Beling’s grounds of appeal do not have reasonable prospects of success and find this weighs against the grant of an extension of time.
Prejudice to the Respondent
We do not consider that the grant of an extension of time would prejudice Ms Loveday’s capacity to respond to the appeal. However, the mere absence of prejudice is not necessarily a factor which weighs in favour of the Appellant’s application for an extension of time. We consider this factor is a neutral consideration.
Conclusion
We cannot identify any other consideration relevant to the application for an extension of time. Having regard to the matters discussed above, we are firmly satisfied that the interests of justice would not be served by granting an extension. The delay in filing the appeal was lengthy, no satisfactory explanation for the delay has been afforded, and the appeal does not have reasonable prospects of success.
The appeal was filed beyond the time prescribed by rule 56(2)(a), and an extension of time has been refused. The appeal is therefore incompetent and is dismissed.
VICE PRESIDENT
Hearing details:
Matter decided on the papers.
Final written submissions:
Appellant’s written submissions 28 July 2022.
[1] [2021] FWC 6575.
[2] Rule 56(2) of the Fair Work Commission Rules 2013.
[3] [2014] FWCFB 4822; see also Panayiotou v University of Adelaide[2020] FWCFB 1692 at [8].
[4] Brisbane South Regional Health Authority v Taylor [1996] HCA 25, 186 CLR 541.
[5] Decision at paragraph [15].
[6] Ibid.
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