Lianne Anderson

[2020] FWC 1989

[2020] FWC 1989

FAIR WORK COMMISSION

DECISION

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

Lianne Anderson
(AB2019/619)

DEPUTY PRESIDENT YOUNG MELBOURNE, 17 APRIL 2020

Application for an FWC order to stop bullying.

[1] On 6 November 2019, Ms Lianne Anderson made an application for an order to stop bullying under section 789FC of the Fair Work Act 2009 (the Act). The respondents to the application are Monash Health, and Professor David Clarke (the Respondents).

[2] A conference of the parties was conducted on 16 December 2019 but failed to resolve the matter. A further two report-back mentions occurred on 6 February 2020 and 19 March 2020. Ms Anderson failed to attend the second report-back mention (Second Mention).

[3] Ms Anderson last attended the workplace on 11 October 2019.

[4] At the Second Mention, the Respondents advised, and subsequently confirmed by way of statutory declaration provided to the Commission and Ms Anderson on 31 March 2020 (Statutory Declaration), that:

•  On 30 January 2020, Ms Anderson provided a medical certificate to Monash Health for the period of 24 January to 21 February 2020 indicating her further incapacity to work;

•  On 6 February 2020, Monash Health received an email from Ms Anderson indicating that her residential address and telephone number would change and providing a new email address. No new residential address or telephone number was provided to Monash Health;

•  No further correspondence or communication was received by Monash Health from Ms Anderson, except that on 6 February 2020 Ms Anderson returned, by post, her work laptop and mobile phone. There was no reply address provided;

•  On 7 February 2020, Monash Health, through its solicitors, emailed Ms Anderson at both her previous and new email address raising concerns regarding her employment and this proceeding in the Commission;

•  On 25 February and 4 March 2020, Monash Health unsuccessfully attempted to contact Ms Anderson by telephone;

•  On 11 March 2020, Monash Health unsuccessfully attempted to contact Ms Anderson’s next of kin;

•  Also on 11 March 2020, Monash Health sent a ‘Warning of Abandonment’ letter as well as a letter providing the findings of an investigation into her conduct as an employee to Ms Anderson via both her previous and new email addresses, and by courier to her last known residential address. No response was received by Monash Health.

[5] The Statutory Declaration advised that enquiries with the Commonwealth Department of Home Affairs confirmed that Ms Anderson was not in Australia as at 19 March 2020.

[6] The Statutory Declaration also confirmed that on 19 March 2020, Monash Health sent Ms Anderson a ‘Confirmation of Abandonment’ letter advising that she was considered to have abandoned her employment, and as such her employment with Monash Health was terminated effective 27 March 2020. A copy of this letter was sent to Ms Anderson at her previous and new email addresses, and by courier to her last known residential address

[7] In light of the above information, the Commission wrote to the parties on 1 April 2020 advising of my intent to dismiss Ms Anderson’s application pursuant to section 587(1)(c) of the Act, on the basis that as Ms Anderson’s employment with Monash Health had terminated the application had no reasonable prospects of success. I invited Ms Anderson to advise of her intentions and provide any submissions as to why the application should proceed by close of business Wednesday, 8 April 2020. No such correspondence or submissions were received from Ms Anderson.

Statutory provisions

[8] Section 789(1) FF of the Act provides as follows:

“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.

[9] Accordingly, under section 789FF(1) in order for me to make an order to stop bullying, I must be satisfied not only that Ms Anderson has been bullied at work by an individual or group of individuals, but also that there is a risk that she will continue to be bullied at work by that individual or group of individuals.

Consideration

[10] The operation of section 789FF(1) in circumstances where the applicant’s employment has been terminated has been considered in a number of decisions of the Commission. In Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank and Another 1 Gostencnik DP dealt with an anti-bullying application where the applicant had been dismissed by the employer. The Deputy President held:

“[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.”

[11] In Obatoki 2 the Full Bench was dealing with an application where the applicant was no longer employed and the stop-bullying application had been dismissed by the Commission. The Full Bench concluded as follows:

“[16] We consider that the Deputy President correctly held that there were no reasonable prospects that the application could succeed. The Commission could not be satisfied that the second of the two jurisdictional prerequisites of s.789FF(1) could be met. There was no evidence before the Commission indicating that there would be a risk that the Appellant would continue to be bullied at work once he ceased to be engaged by Mallee Track and ceased working at its premises or providing services for it. It necessarily follows that no order pursuant to s.789FF(1) could be made and the application had no reasonable prospects of success.”

[12] This approach was also subsequently confirmed by the Full Bench in Atkinson v Killarney Properties Pty Ltd 3and Cox v Tweed Health for Everyone Pty Ltd.4

[13] It is clear from the Statutory Declaration, which is uncontested, that Ms Anderson’s employment with Monash Health has been terminated. As such, she is no longer at work. Further, there is no material before me which indicates that there is any prospect of Ms Anderson returning to the workplace in any capacity as a worker in the future. On current information Ms Anderson is no longer in Australia. In these circumstances it seems clear that there can be no risk that Ms Anderson will continue to be bullied at work.

[14] Accordingly, I am not satisfied that there is a risk that Ms Anderson will continue to be bullied at work for the purposes of section 789FF(1)(b)(ii). It necessarily follows that I do not have power to make an order to stop bullying pursuant to section 789FF(1).

Application dismissed

[15] 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.”

[16] Section 587 of the Act therefore provides a discretion to dismiss an application if, inter alia, the application has no reasonable prospect of success. Without traversing the authorities that have considered the proper application and meaning of the phrase, ‘no reasonable prospect of success’, it is sufficient to make the following observations.

[17] A conclusion that an application has no reasonable prospect of success should only be reached with extreme caution and in circumstances, for example, where an application is manifestly untenable or is groundless or is so lacking in merit or substance as to be not reasonably arguable. These examples do not provide an exhaustive description of the circumstances when an application has no reasonable prospect of success.

[18] In Spencer v The Commonwealth of Australia (Spencer), 5 consideration was given to the meaning of the phrase, ‘no reasonable prospect’, in the context of s 31A of the Federal Court of Australia Act 1976. In that case the majority (Hayne, Crennan, Kiefel and Bell JJ) said the following:

“In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described with or without the additional intensifying epitaphs like “clearly”, “manifestly” or “obviously” as “frivolous”,” untenable”, “groundless” or “faulty” but none of these expressions alone or in combination should be understood as providing a sufficient chart of the metes and bounds of the powers given by section 31A nor can the content of the word “reasonable” in the phrase, “no reasonable prospect” be sufficiently, let alone completely illuminated by drawing some contrast with what would be a frivolous, untenable, groundless or faulty claim.

Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under section 31A if, and only if, satisfied that there is no reasonable prospect of success. Of course it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly but the elucidation of what amounts to no reasonable prospect can best proceed in the same way as content has been given through a succession of decided cases to other generally expressed statutory phrases such as “just and equitable” when it is used to identify the ground for winding up of a company. At this point in the development of the understanding of the expression and its application, it is sufficient but important to emphasise that the evident legislative power as revealed by the text of the provision would be defeated if its application is read as confined to cases of a kind which fell within the earlier different procedural regimes.” 6

[19] I consider that the observations in Spencer are relevant to the construction and application of the phrase ‘has no reasonable prospect of success’, as it appears in section 587 of the Act.

[20] In all of the circumstances of this matter and based on the materials before me, for the reasons set out above I am satisfied that I do not have the power to make an order to stop bullying. As a consequence, and having regard to observations made in Spencer, I consider that the application has no reasonable prospects of success. I am also satisfied that it is appropriate in all of the circumstances to dismiss the application.

[21] Accordingly, the application is dismissed under section 587(1)(c) of the Act.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   [2014] FWC 3408

 2   Olusegun Victor Obatoki [2014] FWC 8828

 3   [2015] FWCFB 6503

 4   [2018] FWCFB 1440

 5 (2010) 241 CLR 181.

 6   Ibid at [59] – [60].