Luke Tamu

[2020] FWC 4351

[2020] FWC 4351

FAIR WORK COMMISSION

DECISION

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

Luke Tamu
(AB2020/359)

DEPUTY PRESIDENT CLANCY MELBOURNE, 18 AUGUST 2020

Application for an FWC order to stop bullying - whether application for order has no reasonable prospect of success - application to dismiss granted.

[1] In making application to the Fair Work Commission on 29 May 2020, Mr Luke Tamu (the Applicant) sought an order to stop bullying pursuant to s.789FC of the Fair Work Act 2009 (the Act). The Applicant alleges that he was bullied at work during his employment with World Vision Australia (the Respondent).

Procedural Background

[2] On 23 January 2020, the Applicant’s employment was terminated by the Respondent.

[3] On 28 January 2020, the Applicant filed an application pursuant to s.365 of the Act for a general protections (involving dismissal) application (the general protections application).

[4] On 27 May 2020, a certificate pursuant to s.368(3) of the Act was issued in the general protections application. Mr Tamu lodged an appeal against that decision. Permission to appeal was refused and his appeal was dismissed on 2 June 2020. 1

[5] As outlined above, Mr Tamu made his anti-bullying application on 29 May 2020.

[6] On 18 June 2020, the Respondent filed its Form F73 – Response from an employer/principal to an application for an order to stop bullying. In the Form F73, the Respondent confirmed the Applicant’s employment had been terminated by the Respondent and objected to the anti-bullying application on the basis that the Applicant did not meet the definition of a “worker” as he was no longer employed by the Respondent.

[7] As a result, I caused correspondence to be emailed to the parties on 22 June 2020 directing the Applicant to advise me by 3:00PM on 24 June 2020 whether or not he intended to pursue his anti-bullying application despite no longer being employed by the Respondent.

[8] On 23 June 2020, the Applicant confirmed he intended to pursue his anti-bullying application and so I issued the following Directions:

•  The Respondent was directed to file and serve an outline of submissions as to whether the Applicant’s application should be dismissed because it has no reasonable prospects of success, by no later than 3:00PM on Wednesday 8 July 2020.

•  The Applicant was directed to file and serve an outline of submissions, witness statements and other documentary material in response, by no later than 3:00PM on Wednesday 29 July 2020. Further, the Applicant was advised that he was required to address me on how he says there is a risk that he will continue to be bullied at work and/or why his application should not be dismissed.

•  The parties were also directed to ensure that each piece of correspondence to me was copied to the other side.

[9] The Respondent filed and served its material in accordance with my Directions.

[10] The Applicant sent multiple pieces of correspondence to my Chambers. In some of it he sought extensions of time for the filing and service of his material. I was not persuaded at any stage that his requests were made on substantial grounds and therefore none were granted. On 20 July 2020, I confirmed in correspondence sent by my Chambers that my Direction for the Applicant to file and serve his material by no later than 3:00PM on Wednesday 29 July 2020 remained in effect.

[11] On 21 July 2020, further correspondence was sent by my Chambers confirming that the Applicant should file any material in response to the submissions that had been filed by the Respondent by 3.00PM on Wednesday 29 July 2020 and that this material should address how he says there is a risk that he will continue to be bullied at work and/or why his application should not be dismissed.

[12] Correspondence from the Applicant continued to be sent to my Chambers. It addressed a range of matters and so on 28 June 2020, I caused a further email to be sent to the parties confirming that as previously advised, I would review the material filed by 3.00PM on 29 July 2020 and decide the matter based on the material that has been filed by the parties in response to my Directions.

[13] The Applicant filed and served two emails on 29 July 2020.

Legislative Framework

[14] Section 789FC of the Act sets out when a person can make an application to the Commission for an order to stop bullying:

“Application for an FWC order to stop bullying

(1) A worker who reasonably believes that he or she has been bullied at work may apply to the FWC for an order under section 789FF.

(2) For the purposes of this Part, worker has the same meaning as in the Work Health and Safety Act 2011, but does not include a member of the Defence Force.

Note: Broadly, for the purposes of the Work Health and Safety Act 2011, a worker is an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer.

(3) The application must be accompanied by any fee prescribed by the regulations.

(4) The regulations may prescribe:

(a) a fee for making an application to the FWC under this section; and

(b) a method for indexing the fee; and

(c) the circumstances in which all or part of the fee may be waived or refunded.”

[15] Sections 789FD(1) and (2) of the Act set out the requirements for a person to have been bullied at work and relevantly provides:

“When is a worker bullied at work?

(1) A worker is bullied at work if:

(a) while the worker is at work in a constitutionally-covered business:

(i) an individual; or

(ii) a group of individuals;

repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and

(b) that behaviour creates a risk to health and safety.

(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.”

[16] Section 789FF of the Act then sets out when the Commission may make an order to stop bullying:

“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.

(2) In considering the terms of an order, the FWC must take into account:

(a) if the FWC is aware of any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another person or body--those outcomes; and

(b) if the FWC is aware of any procedure available to the worker to resolve grievances or disputes--that procedure; and

(c) if the FWC is aware of any final or interim outcomes arising out of any procedure available to the worker to resolve grievances or disputes--those outcomes; and

(d) any matters that the FWC considers relevant.”

Submissions of the Respondent

[17] The Respondent submits that in this case, the Applicant’s employment was clearly terminated on 23 January 2020 and there are no prospects of him ever returning as an employee for the Respondent. On that basis, it submits the Applicant ceased to be a “worker”, for the purposes of section 789FC of the Act, on 23 January 2020.

[18] It is put by the Respondent that the Applicant refuses to accept that he has been dismissed and appears to confuse the fact that he has been dismissed with whether in his view the termination was lawful. Nonetheless, the Respondent submits there can be no disputing that the Applicant’s employment has been terminated and that he has clearly not been employed by the Respondent since 23 January 2020.

[19] The Respondent submits that given that the Applicant is no longer a “worker” for the Respondent and there is no foreseeable possibility of him ever being employed by the Respondent again, it follows that there is no foreseeable risk that the Applicant will “continue to be bullied at work”. It says that as a consequence, the Commission does not have the power to make an order to stop bullying because of the operation of s.789FF(1)(b)(ii) of the Act, even if it was ever to be satisfied that the Applicant had been bullied at work for the purposes of s.789FF(1)(b)(i). As at least one of the prerequisites of section 789FF(1)(b) have not been met, the Respondent asserts there are no reasonable prospects of the anti-bullying application succeeding.

[20] The Respondent submits that I ought to be satisfied that the prerequisites for the making of an order to stop bullying pursuant to s.789FF(1) of the Act cannot be met by the Applicant and as the Application has no reasonable prospects of success, it is appropriate in all of the circumstances for it to be dismissed, pursuant to the broad discretionary power to dismiss an application under s.587(1)(c) of the Act.

Submissions of the Applicant

[21] The Applicant sent an email to the Commission on 27 July 2020 at 11.12AM, in which he outlined a range of allegations which he asserts establish that he was bullied at work. Further, the Applicant alleges he was issued a fake notice of termination to stop him from continuing in his duties.

[22] The Applicant also submitted it would be unfair for the Commission to decide that his submissions are inadequate, or that he has not made an arguable case, and to dismiss the application, given that his capacity to make submissions should be evaluated. The Applicant says that he will be able to provide a letter from his Doctor, which addresses the impact the bullying has had and the impact on his ability to make submissions in accordance with the Directions.

[23] As outlined above at [10], I was not persuaded at any stage that the Applicant’s requests for further time were made on substantial grounds and therefore none were granted. At no stage were any of the requests accompanied by a medical report outlining the nature of the Applicant’s alleged condition.

[24] As referred to earlier, on 28 July 2020 I confirmed that compliance with my Directions was required. The Applicant submitted two emails on 29 July 2020.

[25] The first email was sent at 11.10AM. It attached a Form F72 – Application for an order to stop bullying (Form F72) and outlined:

a) The Applicant seeks to amend his application so as to allege he was both an employee and volunteer;

b) The Applicant nonetheless alleges that his employment status is current, although there is an “impediment as a result of workplace bullying”;

c) The Applicant does not have to respond to the material submitted by the Respondent alleging termination;

d) Given that he has amended his status as an employee, while both denying there are issues to be resolved and having filed for WorkCover, there is no way his employment could have been terminated lawfully. In this regard the Applicant proffers that Queensland laws prohibit an employer from terminating an employee unless they have been on WorkCover for 12 months;

e) The Respondent has to prove it terminated his employment and since it has not done so, he is an employee who was being forced to resign and after refusing, has been sent a letter in an attempt to make him just disappear.

[26] The second email, sent at 12.04PM, contains a range of submissions, the essence of which are:

a) The Respondent has to prove it has terminated his employment;

b) He is an employee who was being forced to resign;

c) He went on WorkCover, during which time the Respondent issued a “notice of termination” and prior to that it had made it impossible for him to go into work;

d) The Respondent failed to investigate claims he made about being bullied at work;

e) He will be seeking reinstatement;

f) A “government authority” (which appears to be the Fair Work Ombudsman) has found that the Respondent breached laws in its treatment of him and if the employment dispute is not sorted as soon as possible, he will file for enforcement of the “verdict” so that it complies and reinstates his employment; and

g) It is urgent that orders to stop bullying are made.

Consideration

[27] The Applicant’s employment has been terminated on the basis of alleged misconduct. This is confirmed by the letter of termination dated 23 January 2020 appended to the Respondent’s submissions. The Applicant is challenging this state of affairs and I note as part of the general protections application, the Applicant sought reinstatement. Despite his recent reconstruction of what has occurred between himself and the Respondent, the Applicant is no longer “at work” for the Respondent as an employee. Further, I find the Applicant’s late claim that he is somehow a volunteer for the Respondent to be baseless. As to the Applicant’s claim that he lacked the capacity to make submissions in accordance with the Directions, he put no medical material before me that suggests this was the case despite having had five weeks from 23 July 2020 to do so and despite being capable of sending regular email correspondence to my Chambers throughout that period.

[28] I put it to the parties in my email correspondence dated 22 June 2020 that if the Applicant is no longer working for the Respondent, it would seem there is no continuing risk of bullying occurring in the workplace and as such, the Applicant’s application for orders to stop bullying would seem unlikely to succeed. I advised the parties that under s.587 of the Act, an application that has no reasonable prospects of success may be dismissed by the Commission. In my Directions and subsequent correspondence to the parties, I raised the question as to whether, in circumstances where the Applicant’s employment had been terminated, the Applicant will continue to be bullied at work and/or why his application should not be dismissed.

[29] In Bibawi v Stepping Stone Clubhouse Inc t/a Stepping Stone & Others, 2 the Full Bench, when dealing with a dispute as to whether an Applicant was a “worker” in an application made pursuant to s.789FC of the the Act, stated:

“[17] Section 587(1)(a) of the FW Act empowers the Commission to dismiss an application where it has not been made in accordance with this Act, and s 587(1)(c) similarly empowers dismissal where an application has no reasonable prospects of success. This power may be exercised summarily - that is, an application may be dismissed pursuant to s 587(1) prior to a full hearing being conducted. Full Bench decisions such as Townsley v State of Victoria (Department of Education & Early Childhood Development) and Toma v Workforce Variable Pty Ltd have emphasised that the power to dismiss applications summarily should be exercised cautiously and sparingly, consistent with the principle stated by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW):

“… the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion… the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action … is clearly demonstrated.” (references omitted)

[30] As outlined above, the relevant remedy in respect of applications 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”. 3 The discretion to make an order to stop bullying is only 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. 4 (my emphasis)

[31] Thus, before issuing an order under s.789FF, the Commission must be satisfied there is a risk that the worker will continue to be bullied at work. If the Commission is not satisfied there is a risk that the worker will continue to be bullied at work by the individual or group, the application must fail.

[32] Therefore, in this case, even if I was satisfied the Applicant has been bullied at work by an individual or group of individuals, I must also be satisfied there is a risk that he will continue to be bullied at work by the individual or group of individuals and that it is appropriate to make an order to prevent him from being bullied at work. Absent the existence of a risk of continued bullying at work by the individual or group, there is an absence of power to make an order. 5

[33] The Respondent alleges the Applicant was terminated for misconduct. The Applicant apparently seeks reinstatement even if he appears to now be claiming he was either forced to resign or is still employed but being impeded from working due to workplace bullying. The Applicant may have already made or may in the future make a general protections court application and such an application may be listed for hearing at some later time. Subsequent to any court hearing, he may at some point even further in the future, be the subject of a determination by the Federal Court or the Federal Circuit Court. Depending on the outcome, there may or may not be an order for reinstatement. It is clear that the prospect of the Applicant being at work for the Respondent, and at risk of continuing bullying, is currently hypothetical. Further, I am not persuaded that this position will change in the foreseeable future.

[34] The material before me clearly establishes that the Applicant is not and will not for the foreseeable future be at work for the Respondent. As such, I consider I am able to reach a definite and certain conclusion that the Applicant cannot currently succeed in establishing there is a risk that he will continue to be bullied at work. On the material before me therefore, I am satisfied the pre-requisites for the making of an order pursuant to s.789FF(1) of the Act cannot be met and that the Application has no reasonable prospects of success.

[35] Section 587 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.”

[36] The Explanatory Memorandum to the Fair Work Bill 2008 outlined the following in relation to what would become s.587 of the Act:

“Clause 587 – Dismissing applications

2271. Subclause 587 allows FWA to dismiss, on its own initiative or on application, an application which is not made in accordance with the Bill, or that is frivolous, vexatious or has no reasonable prospects of success.

2272. However FWA may not dismiss an application to deal with a dispute involving a dismissal under clause 365 or clause 773 on the grounds that the application is frivolous, vexatious or has no reasonable prospects of success.

2273. This provision is not intended to limit FWA’s power to dismiss applications for other reasons, such as failure to meet jurisdictional requirements.”

[37] It is clear, therefore, that s.587 of the Act vests in the Commission a broad discretionary power to dismiss an application before it. I am satisfied that the Applicant’s application for an order under s.789FF has no reasonable prospects of success. I have decided it is appropriate that I should exercise my discretion and dismiss his application. In reaching this decision, I have had regard to the following:

a) The Explanatory Memorandum to the Fair Work Amendment Bill 2013, when referring to what would become Part 6-4B of the Act, outlines repeatedly the imperative that bullying matters be responded to and dealt with quickly; 6

b) Section 789FE of the Act reflects this imperative by requiring the Commission to start dealing with an application within 14 days after an application is made;

c) The Explanatory Memorandum also outlines that the focus of the anti-bullying jurisdiction is on resolving the matter in question and enabling normal working relationships to resume, i.e. it is a forward-looking jurisdiction; 7

d) It was the intention of Parliament that Part 6-4B of the Act provide a mechanism for the quick and inexpensive resolution of anti-bullying matters 8 and this weighs against proceedings that put the parties to unnecessary expense and/or adjournments of an indeterminate duration;

e) From this imperative for an early and quick response so that normal working relationships can resume, it can be concluded that an anti-bullying application should be resolved as expeditiously as possible, with expense to the parties kept to a minimum;

f) If the Commission was to proceed to hear and determine the anti-bullying application and the question of whether the Applicant has been bullied at work now, despite there currently being no risk that he will continue to be bullied at work, the parties would be put to unnecessary effort and expense for the same conclusion in a few months’ time. It would also be the case that the parties would be put to unnecessary effort and expense if the Applicant is not ultimately successful in securing an order for reinstatement through a general protections court application, if indeed one is or has been made;

g) In the alternative, a prolonged adjournment of the anti-bullying application until such time as it might be established that there is a risk a worker will continue to be bullied at work serves no apparent purpose and would not be consistent with the Parliament’s intention that the jurisdiction provide a quick response. Therefore, such an adjournment should only sparingly be entertained; and

h) Should the Applicant eventually succeed in securing an order for reinstatement, he will not be barred from making another anti-bullying application if he considers there is a risk of continuing bullying at that time.

Conclusion

[38] On the material before me, I consider the pre-requisites for the making of any orders pursuant to s.789FF(1) of the Act cannot presently be met because there is no risk that the Applicant will continue to be bullied at work. I am persuaded that the application the Applicant has made has no reasonable prospects of success and I am satisfied it is appropriate in the circumstances of this case to exercise my discretion pursuant to s.587(1)(c) of the Act to dismiss the Applicant’s anti-bullying application.

[39] Should the Applicant eventually secure a return to the work with the Respondent and at that point still hold the concern that there is a risk of continued bullying at work, he will be free to make another anti-bullying application. Indeed, there is no bar to him making a fresh application and nor will he be prevented from relying on the allegations he has made in this anti-bullying application to make good the requirement in s.789FF(1)(b)(i) of the Act. Further, it is open to the Applicant to prepare his witness evidence now, if he is concerned his recollections and those of any of his intended witnesses are at risk of fading in the meantime.

[40] An order dismissing the anti-bullying application of the Applicant will be issued along with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   [2020] FWCFB 2894.

 2   [2019] FWCFB 1314.

 3   Fair Work Act 2009 (Cth) s.789FF.

 4   Fair Work Act 2009 (Cth) ss.789FF(1)(b)(i) and (ii).

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

 6   Explanatory Memorandum to the Fair Work Amendment Bill 2013 at page 9.

 7   Ibid at page 30.

 8   Ibid at page 9.