Matthew Arthur
[2023] FWC 449
•23 FEBRUARY 2023
| [2023] FWC 449 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Matthew Arthur
(SO2022/406)
| DEPUTY PRESIDENT CROSS | SYDNEY, 23 FEBRUARY 2023 |
Application for an FWC order to stop bullying
Mr Matthew Arthur (the Applicant) was employed by Team Holiday Pty Ltd (the Respondent). The Applicant initially filed an application for an order to stop bullying pursuant to s.789FC of the Fair Work Act 2009 (Cth) (the Act) on 16 August 2022 with an amended application filed on 31 August 2022 (the Application).
On 13 September 2022, the Respondent filed a response (the Response) to the Application alleging that the bullying was reasonable management action, carried out in a reasonable manner. The Response was also copied to the Applicant at the time of filing.
Relevant Facts and Directions
On 14 September 2022, my Chambers issued a Notice of Listing for a Conference, for 10 October 2022.
On 10 October 2022, the Conference was held and the Applicant requested a copy of the Respondent’s Response during the Conference alleging that he was not in receipt of the Response. During the Conference, I requested that the Respondent provide the Applicant with the Response.
On 11 October 2022, the following email from the Respondent was received by my Chambers, copied to the Applicant and attaching the Response:
Dear Matt
Further to yesterday’s conference, and as requested by Deputy President Cross, please find a further copy of the Form 73 Response – originally sent to you on 13 September 2022.
Would you kindly acknowledge receipt.
Kind regards
On 2 November 2022, having not received a response from the Applicant, my Chambers sent the following correspondence to the parties:
Dear Parties,
I refer to the above matter, and to the conference held on 10 October 2022.
Noting that the Respondent has provided the Applicant with the F73, and that some time has passed since that conference, the Applicant is requested to provide an update in respect of the matter.
Mr Arthur, please advise the status of the matter by no later than 4:00pm 8 November 2022. If you have resolved the matter, and wish to discontinue, please file a form F50, or advise clearly in reply if that is the case.
On 8 November 2022, the following email from the Applicant was received by my Chambers and was not copied to the Respondent:
Dear Ms Marshall,
My apologies for the late response, I feel as though the matter has not been resolved. I have endured further incidents of continued bullying in the workplace specifically relating to repeated unreasonable behaviour.
Examples of which include;
-creating an unwelcoming environment
-Unrealistic workloads
-repeatedly accusing me of errors that are unfounded
-making false claims about my performance
-inequitable work demands between myself and colleagues that hold the same position
-encouraging other to disregard my instructions
-manipulating the ability for me to complete my work, overloading,setting deadlines that cannot be achieved, giving deliberately ambiguous instructions. Setting me up to failPlease advise my next course of action, as I would like to continue to peruse the matter.
Regards
Matthew Arthur
On 10 November 2022, my Chambers sent the following correspondence to the parties forwarding the above email from the Applicant for the Respondent’s attention:
Dear Parties,
Chambers refers to the above matter and to the Applicant’s email below.
The Deputy President seeks the Respondent’s response about re-listing by way of reply email by 4pm AEDT on Friday, 11 November 2022.
On 11 November 2022, the following email from the Respondent was received by my Chambers, copied to the Applicant:
Dear Mr Iyer
Thank you for your email.
With reference to the above matter, and in response to Mr Arthur’s email below, we respectfully object to Mr Arthur’s assertions. Mr Arthur’s allegations of bullying are no more than reasonable management actions carried out in a reasonable manner by TeamKids.
TeamKids provided Mr Arthur with the F73 on 13 September 2022 and again (after the Conference) on 11 October 2022. We are seeking a Response to the F73 so we can fully understand and investigate the matter
before consideration of a re-listing. We believe that this fair and reasonable to all parties. Mr Arthur indicated to me on 12th and 17th October that this information was coming albeit it was going to be somewhat delayed.Kind regards
On 15 November 2022, my Chambers sent the following correspondence to the parties:
Dear Parties,
I acknowledge receipt of the Respondent’s below email.
Chambers seeks the view of the Applicant as to whether they agree with the Respondent’s position regarding the re-listing of the matter by close of business on Wednesday, 16 November 2022.
On 16 November 2022, the following email from the Applicant was received by my Chambers, copied to the Respondent:
Dear Linehan,
I do not agree with the respondents position and would like to continue with the re-listing. I will provide the respondent
with a detailed account of my experience in due course.Regards
Matthew Arthur
On 17 November 2022, my Chambers sent the following correspondence to the parties:
Dear Parties,
The Applicant is required to provide his response to the Form F73, and that the matter will be relisted upon the Commission and the Respondent's receipt of his response. The Applicant is to provide his response to the Form F73 by close of business Thursday 1 December 2022.
On 1 December 2022, the following email from the Respondent was received by my Chambers, copied to the Applicant:
Dear Chambers
We wish to advise that Mr Arthur is no longer employed by TeamKids, following an extensive performance improvement process.
Kind regards
On 2 December 2022, my Chambers sent the following correspondence to the parties:
Dear Mr Arthur,
Noting the below notification from the Respondent, please indicate in reply whether you wish to press your Stop Orders application.
For your information, I have listed below some information in respect of the Commission’s Anti-Bullying jurisdiction.
The process to resolve workplace bullying | Fair Work Commission (fwc.gov.au)
Who can apply to stop bullying | Fair Work Commission (fwc.gov.au)Please advise the Commission by 4:00pm on 9 December 2022.
On 17 January 2023, having not received a response from the Applicant to the above email, my Chambers sent the following correspondence to the parties:
Dear Mr Arthur,
I refer to the above matter, and to the below communication from Chambers, and note that the Commission has not heard from you in some time. You are urgently requested to advise Chambers whether you press your Stop Orders Application. Please respond by 4:00pm 19 January 2023.
Please note that, should you fail to reply to this correspondence, your matter may be dismissed without further notice.
Relevant Legislation
Section 587 of the Act provides:
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.
Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.
(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:
(a)is frivolous or vexatious; or
(b)has no reasonable prospects of success.
(3) The FWC may dismiss an application:
(a)on its own initiative; or
(b)on application.
Consideration
The words, “Without limiting when FWC may dismiss an application” at the commencement of s.587(1) of the Act, establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).
In the circumstances, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.
DEPUTY PRESIDENT
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