Luke Polkinghorne

[2018] FWC 6445

[2018] FWC 6445

FAIR WORK COMMISSION

DECISION

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

Luke Polkinghorne
(AB2018/504)

DEPUTY PRESIDENT MASSON MELBOURNE, 18 OCTOBER 2018

Application for an FWC order to stop bullying – Employee dismissed after application lodged – consideration of dismissal of application because application for order to stop bullying has no reasonable prospect of success – No risk of continued bullying at work –Application for order to stop bullying dismissed.

[1] On 14 August 2018, Mr Luke Polkinghorne (Applicant) made an application for an order to stop bullying pursuant to s 789FC of the Fair Work Act2009 (the Act). The Applicant alleges that he has been bullied at work during his employment with No 1 Riverside Quay Pty Ltd T/A BP Retail (the Respondent) by a number of his colleagues.

[2] A conference of the parties was conducted on 11 September 2018 but failed to resolve the matter. The Applicant’s employment with the Respondent was subsequently terminated on 19 September 2018, advice of which was provided by the Applicant to the Commission on 2 October 2018.

[3] On 3 October 2018, correspondence was sent by the Commission to the parties advising them that I was considering dismissing the Applicant’s application on the grounds that it has no reasonable prospects of success.

[4] Directions were issued to the parties on 3 October 2018 for the filing of submissions and material on or by 17 October 2018. Submissions were subsequently filed by both the Respondent and Applicant which I have had regard to. As neither party requested to be further heard regarding their submissions I determined to deal with the matters on the material before me.

[5] The relevant remedy in respect of a bullying application is an order which the Commission considers appropriate ‘to prevent the worker from being bullied at work by the individual or group’.¹ If other jurisdictional prerequisites have been met, the discretion to make an order is only exercisable if, relevantly, 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.²

[6] It is clear from the terms of s 789FF of the Act that if I am satisfied that the Applicant has been bullied at work by an individual, or group of individuals, the next step is to then determine whether there is a risk that the Applicant will continue to be bullied at work by the individual or group of individuals. In assessing that risk, I must be satisfied that the risk that the Applicant will continue to be bullied at work by an individual or group of individuals although not imminent, must be real, and not merely a conceptual or hypothetical, risk.

[7] It is not disputed that an application has been made under s 789FC of the Act. Determination of whether bullying has occurred has not been made. However, given the Applicant’s dismissal on 19 September 2018, the key issue to be now considered is, even if bullying was found to have occurred, is there a risk that the bullying conduct towards the Applicant will continue. In Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank and Another (Shaw v ANZ),³ Deputy President Gostencnik, when dealing with an anti-bullying application following the dismissal of the applicant, found as follows:

“[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…...”

[8] The reasoning of the Deputy President in Shaw v ANZ is apropos to the circumstances in the present matter before me and I respectfully adopt that reasoning.

[9] Section 587 of the Act 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.

[10] 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.

[11] In Spencer v The Commonwealth of Australia (Spencer),⁴ 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.”⁵

[12] I believe 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 s 587 of the Act.

[13] The power to dismiss under s 587 of the Act is exercisable in relation to ‘an application’. This raises the question of the nature of the application the Applicant has made. In the context of the Commission’s anti-bullying jurisdiction, the answer is to be found in s 789FC of the Act, which provides that a worker ‘who reasonably believes that he or she has been bullied at work may apply to the FWC for an order under s 789FF’. In assessing whether ‘the application’ for an order under s 789FF of the Act ‘has no reasonable prospects of success’, it is plainly necessary to consider whether each of the preconditions for the making of an order under that section might be able to be made out.

[14] It not contested that the Applicant’s employment with the Respondent has ended. The question as to whether the Applicant’s bullying application has no reasonable prospect of success must be answered by having regard to: the statutory provisions contained in Part 6-4B of Chapter 6 of the Act; the provisions under which the Applicant’s application is made; taking into account the facts as presently known; the facts that are not disputed; and taking the Applicant’s case at its highest. Put simply, is there some reasonable prospect that the Applicant will be able to persuade me to make an order under s 789FF of the Act?

[15] Section 789FC of the Act provides that a worker who reasonably believes that he or she has been bullied at work may apply to the Commission for an order under s 789FF of the Act. Section 789FD of the Act sets out the meaning of the phrase ‘bullied at work’. That a person who seeks an order has made an application under s 789FC of the Act is one of the matters about which I must be satisfied before considering whether to exercise my discretion to make an order to stop bullying under s 789FF of the Act. It is clear in the present matter that the Applicant has made an application under s 789FC of the Act.

[16] That a person who has made an application has been bullied at work by an individual or a group of individuals is another of the matters about which I must be satisfied. This is in dispute and is denied by the Respondent and the named persons. For the purposes of considering dismissal of the application, I am prepared to take the Applicant’s case at its highest and assume without deciding, that the Applicant will be able to satisfy me at the hearing of his application that he was bullied at work by an individual or group of individuals identified in his application. On this basis, two of the three prerequisites in s 789FF(1) of the Act in support of making an order would be satisfied.

[17] However, as s 789FF(1)(b) of the Act makes clear, I must also be satisfied that there is a risk that the Applicant will continue to be bullied at work by that individual or group of individuals. Without satisfaction of the existence of a risk of continued bullying at work of the Applicant by an individual or group of individuals, no power to make an order exists.

[18] The Applicant has taken steps to seek a remedy in relation to his dismissal by the Respondent having filed an unfair dismissal application on 29 September 2018. That application may, if successful, result in reinstatement at some point in the future. The prospect of the Applicant being ‘at work’ with the Respondent is, however, clearly speculative or hypothetical, as is the consequent risk of continued bullying of the Applicant at work by an individual or group.

[19] As the Applicant has been dismissed and is no longer employed by the Respondent, it cannot be established that there is a risk that the Applicant will continue to be bullied at work by an individual or group of individuals. There is presently no real risk of that eventuality. That has been the case since 19 September 2018 and continues to be the case as at the date of this decision.

[20] It necessarily follows that I do not have power to make an order to stop bullying and, as a consequence, I am satisfied that the application for an order under s 789FF of the Act has no reasonable prospect of success.

[21] In reaching this conclusion, I have also considered the option of simply adjourning the present matter subject to the outcome of the unfair dismissal application filed by the Applicant. In my view, there would be little utility to an adjournment given the uncertainty and speculation that such a course of action raises.

[22] Should the Applicant succeed in his unfair dismissal application, such that he was re-instated, there would be no barrier to the Applicant making a fresh anti-bullying application save for the normal jurisdictional requirements.

[23] I am therefore of the opinion that the Applicant’s application for an order under s 789FF of the Act has no reasonable prospect of success and should be dismissed. I exercise my discretion to do so pursuant to sections 587(1)(c) and 587(3)(a) of the Act. An order dismissing the Applicant’s application for an order under s 789FF of the Act is separately issued in PR701539.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR701536>

1 Section 789FF(1) Fair Work Act 2009.

2 Section 789FF(1)(b) Fair Work Act 2009.

3 [2014] FWC 3408.

4 (2010) 241 CLR 181.

5 Ibid at [59] – [60].