Louise Dell v South32 Worsley Alumina Pty Ltd T/A South32 Worsley Alumina Pty Ltd

[2018] FWC 4441

[2018] FWC 4441

FAIR WORK COMMISSION

DECISION

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

Louise Dell
v
South32 Worsley Alumina PTY LTD T/A South32 Worsley Alumina Pty Ltd; Melissa Byrne
(AB2017/540)

DEPUTY PRESIDENT BEAUMONT PERTH, 27 JULY 2018

Application for an FWC order to stop bullying - application to dismiss pursuant to s.587(1)(c) - whether application for order has no reasonable prospect of success - application to dismiss granted.

[1] By application lodged with the Fair Work Commission (the Commission) on 4 October 2017, Ms Louise Dell (the Applicant) sought an order to stop bullying pursuant to s.789FC of the Fair Work Act2009 (the Act) (Bullying Application). Ms Dell alleged that she had been bullied during her employment with South32 Worsley Alumina Pty Ltd (South32) by Mr Frank Mofflin, Manager Community and Ms Melissa Byrne (Lead Community Affairs Worsley.

[2] On 8 May 2018, South32 applied to the Commission under s 587 of the Act for the Bullying Application to be dismissed (Dismissal Application).

[3] In order to facilitate the hearing and determination of the Dismissal Application, I issued Directions on 14 May 2018 for the filing and exchange of materials on which each party proposed to rely. While South32 complied with these Directions, Ms Dell did not.

[4] A mention was listed for 7 June 2018 to traverse Ms Dell’s non-compliance with the Directions. At the mention Ms Dell was asked whether she had filed any submissions or material that she wished to rely upon, and whether she had sought an extension of time in which to file such material. Ms Dell responded in the negative to both. Ms Dell was offered an extension of time in which to file submissions and evidence regarding the Dismissal Application. However, Ms Dell was adamant that she would not be filing any submissions or evidence in the matter. Both parties consented to the matter being determined on the papers.

Background

[5] Ms Dell commenced employment with South32 on 28 November 2016 in the role of Specialist Community, which sits within the Corporate Affairs department of the group of companies to which South32 belongs (South 32 Group).

[6] Ms Dell had alleged, among several other matters, that Ms Byrne had been a constant critic and that Mr Mofflin had a passive aggressive ‘Jekyll & Hyde’ type of personality. It was the view of Ms Dell that there was a systematic process of belittling and demeaning tactics in play.

[7] The allegations outlined by Ms Dell were refuted by South32 who had conducted a workplace investigation regarding the allegations made against Ms Byrne. South32 had concluded that Ms Byrne had not engaged in any conduct toward Ms Dell that constituted workplace bullying and that Ms Byrne had attempted to reasonably manage legitimate concerns regarding Ms Dell’s performance. Up until the Bullying Application was made, South32 was unaware that Ms Dell was of the view that she had been bullied by Mr Mofflin.

[8] In late November 2018, South32 said that the South32 Group undertook a review of its global functional structures resulting in the announcement of a new structure on 9 April 2018. Ms Grace Caterina, Principal Employee Relations (Ms Caterina), gave evidence that under the new structure South32 no longer required the role performed by Ms Dell to be performed by anyone, and the role was identified as redundant 1.

[9] A meeting was said to have been held on 13 April 2018, in which a discussion took place with Ms Dell concerning the restructure and the redundancy of her role 2. Ms Dell received a pack at the meeting which included administrative information and a letter that outlined that Ms Dell had not been successfully placed into one of the remaining positions3.

[10] Ms Caterina sent an email to Ms Dell on 24 April 2018 that attached a letter which confirmed that Ms Dell’s employment would end on 30 April 2018 because no redeployment opportunities had been identified 4.

[11] On 26 April 2018, Ms Caterina said that Ms Dell sent her an email confirming that Ms Dell would ‘take the redundancy’, and requested a signed copy of the 13 April 2018 letter, which was later provided that same day 5.

Submissions of South32

[12] In short, South32 submitted that the Bullying Application should be dismissed on the basis that Ms Dell is no longer a ‘worker’ for the purpose of the Commission’s anti-bullying jurisdiction and that the Commission is no longer able to exercise jurisdiction to make orders under s 789FF of the Act as part of the Bullying Application. There was, according to South32, no risk that Ms Dell will be bullied at work as her employment with South32 had ceased.

[13] It was the case, said South32, that on 7 May 2018, Ms Dell had filed an unfair dismissal application with the Commission (UD Application) seeking an order of reinstatement. South32 anticipated that there may be a request from Ms Dell to hold the Bullying Application in abeyance until such time as the UD Application was dealt with.

[14] While Ms Dell referred to a recommendation that the Bullying Application be put on hold in an email to my Chambers on 8 May 2018, no submission or evidence was received in support of this recommendation.

[15] Nevertheless, South32 submitted that a request to hold the Bullying Application in abeyance should be declined based on several reasons. To summarise, first, South32 submitted that the prospect of Ms Dell being reinstated as a remedy of her UD Application was hypothetical and speculative. Second, the dismissal of the Bullying Application does not result in any prejudice to Ms Dell as she would be entitled to make a further application for orders to stop bullying. Third, the period of the abeyance is unclear in light of the parties’ rights to appeal and seek review of decision of the Commission in the Federal Court. Fourth, the interests of justice do not warrant the Bullying Application being held in abeyance given the circumstances, particularly in light of the fact that the Bullying Application makes various allegations, and seeks orders, against, two individuals.

Legislative framework

[16] Under s 587 of the Act the Commission is provided with authority to dismiss an application of its own initiative or on application if:

a) the application is not made in accordance with the Act; or

b) the application is frivolous or vexatious; or

c) the application has no reasonable prospects of success.

[17] There are circumstances where the Commission must not dismiss an application, but with regard to the Application before me they are not relevant  6.

[18] To determine if an application has no reasonable prospect of success with regard to an application brought under s 789 of the Act, consideration is given to the relevant remedy sought. The relevant remedy in respect of an application 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’ 7. The discretion to make an order to stop bullying is 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 8.

[19] Before granting an order under s 789FF, the Commission must be satisfied of the first limb outlined above, and if so, the Commission must also be satisfied there is a risk that the worker will ‘continue’ to be bullied ‘at work’ by the individual or group responsible for the bullying.

[20] In Rosa Resta v Jo Mercer; Christina Kotsiris 9(Resta), Deputy President Clancy traversed the decisions of the Commission regarding applications for orders to stop bullying in circumstances where the applicant had been dismissed. Relevantly, in each of those cases it was advanced that the s 789FC application had no reasonable prospects of success. The Deputy President referred to the decisions in Shaw10, Re G.C.11, Obatoki12 and Atkinson13. In those cases it was found that there was no risk to the applicant regarding a continuation of workplace bullying because the applicant was no longer employed by the respondent.

[21] In Obatoki 14the applicant’s services had been terminated and he was no longer working for the respondent. In that context, the Full Bench of the Commission found:

[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.

[17]It is worth noting, as did the Deputy President in the decision below, that there is nothing to preclude the Appellant, should he return to work at Mallee Track at some future point, from making another application under s.789FC subject to the jurisdictional facts being established in relation to that application. (references omitted)

[22] Deputy President Gostencnik dealt with an application for an order to stop bullying in circumstances where the applicant had been summarily dismissed and had commenced an adverse action claim in the Federal Circuit Court of Australia in relation to his dismissal 15. In granting the respondent’s application for the dismissal of the anti-bullying application pursuant to s.587(1) of the Act, the Deputy President concluded:

[19] Each case of this kind will turn on its own peculiar facts. It should not be assumed that it will always be appropriate to dismiss an application for an order under s.789FF because the worker has been dismissed. In some circumstances it may be appropriate to adjourn a proceeding instead of dismissing it or to proceed with determining the other preconditions in s.789FF before considering the question of risk of continued bullying at work.

[20] I have given consideration to both these possible courses of action but I have concluded that neither course is appropriate in the present circumstances. If I were to proceed to determine the matter, I would likely face the same question concerning risk in a few months. At that point the conclusion would be the same. The efficient administration of justice is not served by this course and resources of the parties would be unnecessarily expended.

[21] An adjournment for a period that is both lengthy and presently indeterminate is also not conducive to the efficient administration of justice. Cases of this kind should be determined with reasonable expedition. Certainly, the legislature had this in mind by mandating that the Commission start dealing with such an application within 14 days after the application is made.  Moreover, in the event that the Applicant succeeds before the Federal Circuit Court and he is reinstated, he is free to make another application if he believes there is a risk of continued bullying and it seems to me, there is nothing to prevent the Applicant relying on the conduct currently alleged in this application to make good the other jurisdictional fact requirements. As such, no real prejudice is suffered by the Applicant, and there will be no material delay in dealing with a new application on that basis when compared to the delay in determining this application if it were adjourned, pending the hearing and determination of the Federal Circuit Court proceeding.

[22] I am therefore of the opinion that the application for dismissal of the Applicant’s application for an order under s.789FF should be granted…(references omitted) 16.

[23] In Resta, Deputy President Clancy outlined what he considered to be Deputy President Gostencnik’s view regarding the Commission’s discretionary power under s.587 of the Act in the context of an anti-bullying application, with reference to Spencer v The Commonwealth of Australia 17. The Deputy President observed in this respect:

•  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 18; 

•  the circumstances in which the phrase “has no reasonable prospect of success” might apply should not be confined to those that are frivolous, untenable, groundless or faulty. Full expression should be given to the phrase 19;

•  the answer to the question whether a particular application has no reasonable prospect of success in the context of s.587 of the Act may differ depending on the time at which the question is asked. As such, while an application at its inception may have some reasonable prospect of success, if circumstances change during the course of dealing with it, it might no longer have a reasonable prospect of success 20; and

•  in assessing whether “the application” for an order under s.789FF of the Act “has no reasonable prospects of success”, it is necessary to consider whether each of the preconditions for the making of an order under that section might be able to be made out 21.

[24] I have had regard to these cases and principles. When assessing whether there is some reasonable prospect that the Applicant will be able to persuade me to make an order under s 789FF of the Act, having considered matters as they currently stand 22.

Consideration

[25] Ms Dell filed with the Commission a Bullying Application and it remains in dispute whether she was bullied or not, as that term is understood by reference to s 789FD of the Act.

[26] However, it is the case that the risk that Ms Dell will continue to be bullied at work by Ms Byrne and Mr Mofflin is obviated in circumstances where her employment has clearly ended. Ms Dell is no longer at risk and therefore it follows no order pursuant to s 789FF(1) could be made and therefore the Bullying Application has no reasonable prospects of success.

[27] However, Ms Dell has filed a UD Application. My attention then turns to whether the Bullying Application should be dismissed or whether it is appropriate to adjourn a proceeding instead, or to proceed to determine the other preconditions in s 789FF before considering the question of risk of continued bullying at work 23.

[28] Neither party proposed that I determine the other preconditions in s 789FF and I do not consider it appropriate to proceed at this time to hear and determine whether the Applicant has been bullied at work. If it is the case that the UD Application is not resolved in favour of Ms Dell regarding reinstatement, then resources would have been expended by the parties unnecessarily.

[29] The prospect of Ms Dell receiving an order for reinstatement concerning the UD Application is speculative and to dismiss the Bullying Application does not in my view result in any prejudice to Ms Dell. It would be open to Ms Dell to make a further application for orders to stop bullying in circumstances where she was reinstated and faced a scenario akin to that allegedly experienced whilst employed with South32. As observed in Willis v Capital Radiology Pty Ltd T/A Capital Radiology; Ms Peita Carroll; Ms Marie Gibson; Mr Dominik Kucera 24 and Resta25 there does not appear to be a bar to her making a fresh application or anything that would preclude Ms Dell relying on the conduct currently alleged in Bullying Application to make good the other jurisdictional fact requirements where the circumstances permit.

[40] I am satisfied that Ms Dell will not suffer prejudice if the Bullying Application is dismissed and there will be no material delay in dealing with a new anti-bullying application when compared to the delay in determining this Bullying Application, if it were adjourned pending the hearing and determination of the UD Application.

[41] I am therefore persuaded to exercise my discretion to grant the application of South32 under to s 587(1)(c) of the Act and dismiss the Bullying Application on the basis that it has no reasonable prospects of success. An order 26 dismissing the Bullying Application will be issued along with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR609496>

 1 Witness Statement of Grace Caterina dated 28 May 2018 [6].

 2 Ibid [7].

 3   Ibid [8]; Annexure GC-1.

 4   Ibid [9]; Annexure GC-2.

 5   Ibid [10]; Annexure GC-3.

 6 s 587(2) of the Act.

 7 s 789FF of the Act.

 8 ss 789FF(1)(b)(i) and (ii) of the Act.

 9   [2017] FWC 5363.

 10   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank; Bianca Haines[2014] FWC 3408.

 11   [2014] FWC 6988 [166].

 12   Obatoki v Mallee Track Health & Community Services and Others[2015] FWCFB 1661 [16] – [17].

 13   Atkinson v Killarney Properties Pty Ltd T/A Perm-A-Pleat Schoolwear and Palm [2015] FWCFB 6503 [35].

 14   Obatoki v Mallee Track Health & Community Services and Others[2015] FWCFB 1661 [16] – [17].

 15   Willis v Capital Radiology Pty Ltd T/A Capital Radiology; Ms Peita Carroll; Ms Marie Gibson; Mr Dominik Kucera [2016] FWC 716.

 16   Ibid.

 17 (2010) 241 CLR 181.

 18   [2016] FWC 716 [7].

 19 Ibid [9].

 20 Ibid [10].

 21 Ibid [11].

 22   Rosa Resta v Jo Mercer; Christina Kotsiris [2017] FWC 5363 [30].

 23   Willis v Capital Radiology Pty Ltd T/A Capital Radiology; Ms Peita Carroll; Ms Marie Gibson; Mr Dominik Kucera [2016] FWC 716 [20].

 24   Willis v Capital Radiology Pty Ltd T/A Capital Radiology; Ms Peita Carroll; Ms Marie Gibson; Mr Dominik Kucera [2016] FWC 716.

 25   Rosa Resta v Jo Mercer; Christina Kotsiris [2017] FWC 5363 [39].

 26   PR609497.