Medhat Awwad
[2020] FWC 3461
•8 JULY 2020
| [2020] FWC 3461 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Medhat Awwad
(AB2019/398)
COMMISSIONER WILSON | MELBOURNE, 8 JULY 2020 |
Application for an FWC order to stop bullying. - application to dismiss pursuant to s.587 - whether application for order has no reasonable prospect of success – application pursuant to s.593(3)(c) for an order prohibiting the publication of the individual’s names - application to dismiss granted.
[1] By application lodged with the Fair Work Commission (the Commission) on 27 July 2019, Mr Medhat Awwad (the Applicant) seeks an order to stop bullying (the anti-bullying application) 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 Australia and New Zealand Banking Group Limited (ANZ). He alleges that he has been subjected to bullying at work by five colleagues, who are employed by ANZ. The colleagues together with ANZ are hereafter collectively referred to as the “Respondents”. Where an individual Respondent is referred to individually, they have been assigned a pseudonym of Employee A, Employee B, Employee C, Employee D or Employee E.
BACKGROUND
[2] Mr Awwad’s application for an order to stop bullying pursuant to s.789FC of the Act was allocated to me on 9 August 2019 and I listed it for a conference to take place on 12 September 2019. As a result of the matters discussed in the initial conference, a further conference was convened before me on 18 September 2019. The parties engaged in a course of agreed steps following these conferences.
[3] Mr Awwad sent email correspondence to my chambers on 22 January 2020 requesting his anti-bullying application be programmed for hearing. At the request of my chambers, Mr Awwad provided a copy of his email correspondence to ANZ on 3 February 2020.
[4] On 3 February 2020, I issued filing Directions to the parties and the matter was listed for hearing on Wednesday, 11 and Thursday, 12 March 2020. Following the Directions being issued, ANZ requested the matter be programmed for a further conciliation. After considering the matter, I determined that there would likely be no utility in listing a further conciliation conference and so declined ANZ’s request. I did however consider it appropriate to reset the hearing dates and invited the parties views on the forward programming of the matter.
[5] After considering the parties views on the future programming of the matter, I issued Amended Directions on 18 February 2020. The Amended Directions listed the matter for hearing on Monday, 18 and Tuesday, 19 May 2020.
[6] Mr Awwad filed certain materials in compliance with the Amended Directions on 23 March 2020. I was disposed to accept the materials filed as Mr Awwad’s outline of submissions and witness statement. Mr Awwad however failed to file a Draft Order for the remedy he sought. My chambers therefore sent email correspondence to Mr Awwad on 30 March 2020 directing Mr Awwad to file a Draft Order by Tuesday, 14 April 2020. Mr Awwad was provided with example Draft Orders to assist him with the preparation of his materials. As Mr Awwad did not file a Draft Order by the filing date in the Amended Directions, I issued Further Amended Directions on 6 April 2020 amending the Respondents filing dates. The Hearing dates were not altered.
[7] Mr Awwad filed a document purporting to be a Draft Order on 14 April 2020.
[8] After receiving the Draft Order document, the Respondents wrote to my chambers through their legal representative seeking the matter be programmed for proceedings to address the Draft Order document provided by Mr Awwad. I therefore listed the matter for a Mention on 27 April 2020.
[9] At the commencement of the Mention, I granted permission pursuant to s.596 of the Act to Mr Michael Tamvakologos from Seyfarth Shaw to represent the Respondents. The subjects of the Mention were that:
“This is a formal mention hearing, Mr Awwad, which relates to your anti-bullying application. So far you have provided materials to the Commission following the directions which were given over several iterations, concluding in April. What has occurred since then, of course, is that Mr Tamvakologos has written to the Commission on 22 April, which is expressing some concerns about your filing of what could be called a draft order. What I take from that correspondence from Seyfarth Shaw is that they wish to formally put some propositions to the Commission about how this matter should go forward.” 1
[10] I indicated to the parties during the course of the Mention that I maintained my view that there would be no utility in convening a further conciliation conference. The Respondents also indicated in the Mention that they would file an application pursuant to s.587 of the Act to have Mr Awwad’s anti-bullying application dismissed for no reasonable prospect of success.
[11] Because of the matters raised in the Mention, I caused correspondence to be sent to the parties on 29 April 2020 setting aside the remaining Directions, vacating the substantive hearing listed on 18 and 19 May 2020 and advising that the Respondents had until close of business Friday, 8 May 2020 to file its application to dismiss the anti-bullying application pursuant to s.587.
[12] An application to dismiss the anti-bullying application was filed by the Respondents on 8 May 2020 (dismissal application) with each individual Respondent applying under section 593(3)(c) for an order prohibiting the publication of their names (orders application). My chambers corresponded with the parties on 12 May 2020 setting out a proposed course of action for the filing of materials and the hearing of the dismissal application as follows:
“1. To vacate the hearing dates on 18 and 19 May 2020 and to allow Mr Awwad time to respond;
2. The Commissioner proposes to give Mr Awwad 2 weeks to respond;
3. The Commissioner views that the application probably lends itself to being determined on the papers. The Commissioner invites the parties views about the matter being determined on the papers or if a hearing is sought;
4. If a hearing is required it will be programmed after Mr Awwad files.”
[13] Seyfarth Shaw on behalf of the Respondents advised they did not seek a hearing on the dismissal application and consented to the proposed course of action. Mr Awwad wrote to my chambers seeking additional time to respond so he could obtain legal advice.
[14] I considered it appropriate to allow Mr Awwad additional time to respond and Directions were issued to parties on 14 May 2020 providing Mr Awwad three weeks to file any material in reply to the dismissal application. The Directions provided “If no response is provided by Mr Awwad, Commissioner Wilson will determine the matter on the material filed by Seyfarth Shaw.” No materials were received by Mr Awwad and no party requested a hearing of the matter. I did not form the view that a hearing was required therefore the dismissal application is determined on the papers.
THE INDIVIDUAL RESPONDENTS APPLICATIONS UNDER SECTION 593(3)(C) FOR AN ORDER PROHIBITING THE PUBLICATION OF THEIR NAMES
[15] The five individual Respondents each apply under section 593(3)(c) of the Act for an order prohibiting the publication of their names, and that they be referred to by a pseudonym.
[16] The Respondents advanced five submissions in support of its position that it is appropriate to make an order prohibiting the production of the five individually named Respondents in Mr Awwad’s anti-bullying application.
[17] Firstly, the anti-bullying application fails for want of jurisdiction and it would be inappropriate to publish the individuals names in circumstances where they have not been afforded the opportunity to “clear their names” as the matter has not progressed to a substantive hearing of the application. 2
[18] Secondly, the principles of open justice being a deterrence for others not to engage in bullying behaviour are not activated in this matter as the matter has not progressed to a substantive hearing of the application. 3
[19] Thirdly, the making of an order would not infringe the rights of Mr Awwad. 4
[20] Fourthly, the allegations of bullying behaviour provided by Mr Awwad are “weak”. 5
[21] Fifthly, although not a determining factor the Commission should avoid unwarranted damages to the reputation of individuals, and this would be achieved through an order prohibiting the names of the individuals. 6
[22] Mr Awwad did not file a response to the orders application.
[23] Having considered all of the material, I am satisfied that it is appropriate to issue the order sought. An order prohibiting the publication of the five individual Respondents names will be issued at the same time as this decision. The five individual Respondents will be assigned a pseudonym of Employee A, Employee B, Employee C, Employee D and Employee E.
THE RESPONDENTS APPLICATION THAT THE SUBSTANTIVE APPLICATION BE DISMISSED AS HAVING NO REASONABLE PROSPECT OF SUCCESS
[24] The background to the Respondent’s application that Mr Awwad’s anti-bullying application be dismissed as having no reasonable prospect of success is adequately set out above.
[25] On 8 May 2020, the Respondents made an application to the Commission for the matter to be dismissed under s.587 of the Act for no reasonable prospect of success, given “Mr Awwad has not worked at ANZ since 22 November 2018 and is not presently working. He is not fit for work and, on the uncontested material he has provided, will not be fit for work until both this application and his workers’ compensation application are heard and determined.” (footnote omitted) 7
[26] Directions were issued on 14 May 2020 inviting any reply materials from Mr Awwad regarding the dismissal application to be filed by 4:00 PM Thursday, 4 June 2020.
[27] To date, Mr Awwad has provided no reply.
Legislation
[28] The Act’s provisions in relation to anti-bullying are contained within Part 6-4B—Workers bullied at work, with s.789FD setting out the circumstances of when a worker is bullied at work:
“789FD 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.
(3) If a person conducts a business or undertaking (within the meaning of the Work Health and Safety Act 2011) and either:
(a) the person is:
(i) a constitutional corporation; or
(ii) the Commonwealth; or
(iii) a Commonwealth authority; or
(iv) a body corporate incorporated in a Territory; or
(b) the business or undertaking is conducted principally in a Territory or Commonwealth place;
then the business or undertaking is a constitutionally-covered business.”
[29] Section 789FF sets out the powers of the Commission to make orders in the event that it is satisfied there is bullying at work:
“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.
(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.”
[30] 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. Section 587, in its entirety, provides as follows:
“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.
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
[31] The basis of Mr Awwad’s application is set out below. The allegations he makes of bullying conduct are of events spanning a nine-year period and included being discriminated against on the basis of his race, being excluded from workplace activities, being treated differently to other employees and being overlooked for promotion opportunities.
[32] Mr Awwad commenced employment with ANZ in December 2008. 8 The series of events alleged by Mr Awwad to be bullying behaviours and the preliminary response provided by ANZ are summarised as:
● A Team Leader (who is not an individual named in the anti-bullying application) “mocked” him for a spelling mistake he made in an SMS message; 9
○ ANZ advises this individual is no longer employed by ANZ. 10
● A Team Leader (who is not an individual named in the anti-bullying application) did not treat him in the same matter as another colleague when they obtained their Australian citizenship; 11
○ ANZ advises this individual is no longer employed by ANZ. 12
● He was unable to participate in a team lunch as he was in Ramadan. When he emailed his Team Leader (who is not an individual named in the anti-bullying application) he did not receive a reply; 13
○ ANZ advises this individual is no longer employed by ANZ. 14
● Employee C advised him that his job application was unsuccessful because “we do not really understand what you are saying”; 15
○ ANZ advised it is Employee C’s practice to provide constructive feedback to applicants following a recruitment process. Employee C cannot recall the nature of the feedback provided to Mr Awwad given the passage of time since the interview. 16
● When discussing his complaint with his Team Leader (who is not an individual named in the anti-bullying application) and Employee D, his job was threatened; 17
○ ANZ advises that Employee D denies this allegation. 18
● His secondment to another team within ANZ was ended early without explanation; 19
○ ANZ advise that the employee Mr Awwad accuses of ending his secondment early is no longer employed by ANZ. 20
● He was isolated from his team and whilst he was on secondment he was excluded from a team lunch; 21
○ ANZ advises the employee Mr Awwad alleges excluded him from the team lunch is no longer employed by ANZ. 22
● He was laughed at by Employee D and another employee (who is not an individual named in the anti-bullying application); 23
○ ANZ advises that Employee D denies this allegation. 24
● He felt isolated when he attended a function with his colleagues; 25
○ ANZ did not address this concern in their initial response.
● He was told by Employee D that he would not be moving to another role because he brings “good dishes for harmony day”; 26
○ ANZ advises that Employee D denies this allegation. 27
● Employee B did not acknowledge him on several occasions when he greeted him; 28
○ ANZ advises that Employee B denies the allegation. 29
● Employee B and Employee E spoke about him saying he does not get along with the team and criticising his English; 30
○ ANZ advises that Employee B and Employee E deny the allegation. 31
● Employee A unfairly allocated work to him; 32
○ ANZ advises Employee A denies the allegation. 33
● Employee A did not recognise his work performance and provided unfair feedback; 34
○ ANZ advises Employee A denies the allegations. 35
● Employee A required him to provide a medical certificate for using the bathroom too frequently; 36
○ ANZ advises Employee A denies the allegation. 37
● Employee A said that he was “crazy” in a group conversation; 38
○ ANZ advises Employee A denies the allegation. 39
● His applications for internal job vacancies were unsuccessful and he received negative feedback following a job interview for an internal vacancy. 40
[33] ANZ submit that they first became aware that Mr Awwad felt discriminated and harassed when he contacted ANZ’s People Assist Department in December 2018. Following Mr Awwad’s contact with the People Assist Department, a case was raised with the Employee Relations Team and was allocated an advisor within that Team. 41 According to ANZ, they contacted Mr Awwad by telephone to discuss his allegations and within that conversation Mr Awwad advised that he had been certified as medically unfit to attend work by his doctor. ANZ requested Mr Awwad confirm with his treating physician if he was well enough to speak with ANZ about his concerns. Mr Awwad did so and advised ANZ he was not well enough to speak to them about his allegations.42
[34] Preliminary steps into an investigation were taken in the early months of 2019 but the investigation could not be advanced until Mr Awwad was well enough to participate.
[35] On 25 January 2019, Mr Awwad made a workers’ compensation claim against ANZ. The claim is currently before the Magistrates’ Court of Victoria. The proceedings before the Court has been adjourned due to the Court’s direction in response to the Covid-19 pandemic that no hearing with more than one witness would be proceeding to a hearing. 43
[36] In March 2019, Mr Awwad lodged an application with the Victorian Equal Opportunity and Human Rights Commission alleging that ANZ had discriminated against him on the basis of race. The matter was closed by the Victorian Equal Opportunity and Human Rights Commission in July 2019.
[37] In April 2019, Mr Awwad advised ANZ that he was well enough to speak with Employee Relations about the allegations he had made, and the investigation was advanced. In July 2019, ANZ advised Mr Awwad of the outcome of the investigation into his concerns with a finding that no form of bullying, discrimination or harassment had occurred. 44
[38] The Respondents dismissal application asserted “Mr Awwad cannot make out the jurisdictional facts necessary to show that there is a Future Bullying Risk.” 45 The Respondents advanced two arguments for the dismissal of Mr Awwad’s anti-bullying application which are articulated below.
[39] Mr Awwad has been absent from the workplace since November 2018 and is presently unfit for work and on the material before the Commission will not be fit to return to work until this application and the workers’ compensation claim filed by Mr Awwad have been finalised:
“the workers’ compensation application is listed for a directions hearing on 3 August 2020 and there are further pre-trial steps that will occur. Given the disruption to court timetables caused by the COVID-19 pandemic, the workers’ compensation matter will likely not be heard and determined before the first quarter of 2021. Post that determination, an assessment will then need to occur to ascertain Mr Awwad’s fitness for work at that point in time, and the terms (such as a return to work plan) upon which it is appropriate for him to return to work. The Commission must make an assessment of the Future Bullying Risk as at the time of hearing of this application, which was substituted for the hearing of the substantive bullying application as a result of orders made on Monday 27 April 2020. Accordingly, there is not at present, and will not be at the hearing of this application, any risk to Mr Awwad’s health and safety as a result of anything that might happen at work.” 46
[40] The Respondents also asserted that Mr Awwad’s anti-bullying application has no reasonable prospects of success as four of the five individually named Respondents no longer “work directly with or in the same immediate workplace as Mr Awwad.” 47 Although the five individually named Respondents work at the same premises, Mr Awwad confirmed in the Mention before me that sighting the individuals in the building would not raise a concern for him.48
[41] The one individually named Respondent, Employee E, who continues to work in the same team as Mr Awwad denies the one allegation of bullying behaviour made against her. 49 Mr Awwad also confirmed in the Mention that he would have no concern participating in team briefings with Employee E.50
[42] 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.
[43] In Spencer v The Commonwealth of Australia, 51 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 plurality (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.’ 52
[44] In the circumstances of this matter, given there is no evidence before the Commission to satisfy the criteria under s.789FD of the Act I am persuaded to exercise my discretion to grant the application of the Respondents pursuant to s.587(1)(c) of the Act to dismiss the Applicant’s anti-bullying application on the basis that it has no reasonable prospects of success. An order dismissing the Applicant’s anti-bullying application will be issued along with this decision.
COMMISSIONER
Mention Appearances:
Mr M. Awwad for himself
Mr M. Tamvakologos Solicitor for the Respondents
Mention details:
2020.
Melbourne (via telephone);
27 April.
Printed by authority of the Commonwealth Government Printer
<PR720663>
1 Transcript PN 13.
2 Form F1, Attachment “Respondents’ Applications”, 8 May 2020, [25] (a).
3 Ibid, [25] (b).
4 Ibid, [25] (c).
5 Ibid, [25] (d).
6 Ibid, [25] (e).
7 Ibid, [21].
8 Form F72 Application for an order to stop bullying, Attachment “Complaint”, 27 July 2019, page 1.
9 Ibid.
10 Form F73 Response from an employer/principal to an application for an order to stop bullying, 6 August 2019, item 4.1.
11 Form F72 Application for an order to stop bullying, Attachment “Complaint”, 27 July 2019, page 1.
12 Form F73 Response from an employer/principal to an application for an order to stop bullying, 6 August 2019, item 4.1.
13 Form F72 Application for an order to stop bullying, Attachment “Complaint”, 27 July 2019, page 1.
14 Form F73 Response from an employer/principal to an application for an order to stop bullying, 6 August 2019, item 4.1.
15 Form F72 Application for an order to stop bullying, Attachment “Complaint”, 27 July 2019, page 1.
16 Form F73 Response from an employer/principal to an application for an order to stop bullying, 6 August 2019, item 4.1.
17 Form F72 Application for an order to stop bullying, Attachment “Complaint”, 27 July 2019, page 1.
18 Form F73 Response from an employer/principal to an application for an order to stop bullying, 6 August 2019, item 4.1.
19 Form F72 Application for an order to stop bullying, Attachment “Complaint”, 27 July 2019, page 2.
20 Form F73 Response from an employer/principal to an application for an order to stop bullying, 6 August 2019, item 4.1.
21 Form F72 Application for an order to stop bullying, Attachment “Complaint”, 27 July 2019, page 2.
22 Form F73 Response from an employer/principal to an application for an order to stop bullying, 6 August 2019, item 4.1.
23 Form F72 Application for an order to stop bullying, Attachment “Complaint”, 27 July 2019, page 2.
24 Form F73 Response from an employer/principal to an application for an order to stop bullying, 6 August 2019, item 4.1.
25 Form F72 Application for an order to stop bullying, Attachment “Complaint”, 27 July 2019, page 2.
26 Ibid.
27 Form F73 Response from an employer/principal to an application for an order to stop bullying, 6 August 2019, item 4.1.
28 Form F72 Application for an order to stop bullying, Attachment “Complaint”, 27 July 2019, page 3.
29 Form F73 Response from an employer/principal to an application for an order to stop bullying, 6 August 2019, item 4.1.
30 Form F72 Application for an order to stop bullying, Attachment “Complaint”, 27 July 2019, page 3.
31 Form F73 Response from an employer/principal to an application for an order to stop bullying, 6 August 2019, item 4.1.
32 Form F72 Application for an order to stop bullying, Attachment “Complaint”, 27 July 2019, page 3.
33 Form F73 Response from an employer/principal to an application for an order to stop bullying, 6 August 2019, item 4.1.
34 Form F72 Application for an order to stop bullying, Attachment “Complaint”, 27 July 2019, page 3.
35 Form F73 Response from an employer/principal to an application for an order to stop bullying, 6 August 2019, item 4.1.
36 Form F72 Application for an order to stop bullying, Attachment “Complaint”, 27 July 2019, page 4.
37 Form F73 Response from an employer/principal to an application for an order to stop bullying, 6 August 2019, item 4.1.
38 Form F72 Application for an order to stop bullying, Attachment “Complaint”, 27 July 2019, page 4.
39 Form F73 Response from an employer/principal to an application for an order to stop bullying, 6 August 2019, item 4.1.
40 Form F72 Application for an order to stop bullying, Attachment “Complaint”, 27 July 2019, page 4.
41 Form F73 Response from an employer/principal to an application for an order to stop bullying, 6 August 2019, item 2.2.
42 Ibid, item 3.2.
43 Witness Statement of Maya Menabde, 8 May 2020, [7]; [11].
44 Ibid.
45 Form F1, Attachment “Respondents’ Applications”, 8 May 2020, [20].
46 Ibid, [21].
47 Ibid, [22].
48 Transcript PN64 - PN65; PN76 - PN77.
49 Witness Statement of Employee E, 8 May 2020, [13] - [14].
50 Transcript PN66 - PN67.
51 (2010) 241 CLR 181.
52 Ibid at [59] – [60].
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