Margot Healey

[2019] FWC 7690

[2019] FWC 7690

FAIR WORK COMMISSION

DECISION

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

Margot Healey
(AB2019/180)

DEPUTY PRESIDENT YOUNG MELBOURNE, 8 NOVEMBER 2019

Application for an FWC order to stop bullying.

[1] On 4 April 2019, Ms Margot Healey made an application for an order to stop bullying under s.789FC of the Fair Work Act 2009 (the Act). The respondents to the application are Australian Postal Corporation T/A Australia Post (Australia Post), and Mr William Frew (the Respondents).

[2] A conference of the parties was conducted on 8 May 2019 but failed to resolve the matter. The matter was then referred to my chambers.

[3] Following correspondence from the Commission, on 26 September 2019 Ms Healey’s representative advised the Commission that the Applicant had not been medically cleared to participate in a conciliation conference in this matter. Upon review of the file, the following was also apparent:

•  Ms Healey has not been at work since August 2018;

•  Ms Healey is currently on parental leave and not in the workplace; and

•  Ms Healey remains on parental leave until January 2020.

[4] Further, by email dated 11 October 2019, Mr Frew advised the Commission that from 2 December 2019 he would be commencing a period of parental leave and not returning to the workplace until January 2021.

[5] In light of the above information, the Commission wrote to the parties on 10 October 2019 advising of my intent to dismiss Ms Healey’s application pursuant to s.587(1)(c) of the Act, on the basis that in light of Ms Healey’s employment circumstances the application had no reasonable prospects of success. I invited Ms Healey to advise of her intentions and provide any submissions as to why the application should proceed by close of business Friday, 18 October 2019. No such correspondence or submissions were received from Ms Healey or her representative.

Statutory provisions

[6] 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.”

[7] It is clear from the terms of section 789FF of the Act that if I am satisfied that Ms Healey 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 she 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 Ms Healey 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. Further, it is also clear from the terms of section 789FF that the risk of continued bullying must be by the individual or group of individuals against whom the application is made and the order sought.

Consideration

[8] It is uncontested that Ms Healey remains on parental leave until January 2020. On the material before the Commission, it is also does not appear to be contested that Mr Frew will be on parental leave from 2 December 2019 until January 2021.

[9] Under section 789FF(1)(b)(ii) the risk of which I must be satisfied is the risk that Ms Healey will continue to be bullied “at work” by the Respondents. Ms Healey has not been at work for approximately 15 months. She is currently not at work. She is not proposing to return to work until January 2020. She therefore has not been, and currently is not, at work. Further, upon her anticipated return to work in January 2020 Mr Frew will be on parental leave and, therefore, not in the workplace. Mr Frew will not return to the workplace until January 2021. Additionally, there is no material before the Commission which indicates that Mr Frew will have any interaction, engagement or contact with Ms Healey following her return to work in 2020 and prior to his return from parental leave in January 2021. I therefore consider that in these circumstances there cannot be said to be a real risk that Ms Healey will continue to be bullied at work by Mr Frew, being the individual against whom the application is made.

[10] Accordingly, in the present circumstances, I am not satisfied that there is a risk that Ms Healey will continue to be bullied at work by Mr Frew 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).

[11] For completeness, I note that following her return to work, if Ms Healey is concerned about bullying at that or any future time there is nothing to preclude her from making a further application for an order to stop bullying pursuant to section 789FC of the Act, subject to the jurisdictional facts being established in relation to that application. 1 Further, allegations of past bullying can be relied upon in support of such a new application.2

Application dismissed

[12] 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.”

[13] 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.

[14] 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.

[15] In Spencer v The Commonwealth of Australia (Spencer), 3 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.” 4

[16] 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 s 587 of the Act.

[17] 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.

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR714114>

 1   Obatoki v Mallee Track Health & Community Services and Others [2014] FWC 8828 (reaffirmed on appeal [2015] FWCFB 1661).

 2   Dr Ravi v Baker IDI Heart and Diabetes Institute Holdings Limited T/A Baker IDI Heart and Diabetes Institute and Another[2014] FWC 7507 at [14].

 3 (2010) 241 CLR 181.

 4   Ibid at [59] – [60].