Michael Joseph Sands v Graeme Edwards, Downer EDI Engineering Electrical Pty Ltd

[2023] FWC 574

[2023] FWC 574

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.789FC - Application for an order to stop bullying

Michael Joseph Sands
v

Graeme Edwards, Downer EDI Engineering Electrical Pty Ltd

(SO2022/618)

DEPUTY PRESIDENT BEAUMONT PERTH, 20 APRIL 2023

Application for an FWC order to stop bullying

1. On 11 December 2022, Mr Michael Joseph Sands (the Applicant) applied for an order to stop bullying pursuant to s 789FC of the Fair Work Act2009 (Cth) (the Act) (Bullying Application).  The Applicant alleged that he had been bullied during his employment with Downer EDI Engineering Electrical Pty Ltd (the Respondent) by Mr Graeme Edwards, SMP Superintendent (the Person Named). 

1. On 1 March 2023, the Respondent applied to the Commission under s 587 of the Act for the Bullying Application to be dismissed (Dismissal Application).  The grounds for the Dismissal Application consisted of the Applicant’s non-compliance with directions and non-attendance at a conference. 

1. In order to facilitate the hearing and determination of the Dismissal Application, I issued Directions on 1 March 2023 for the filing and exchange of materials on which each party proposed to rely.  While the Respondent complied with these directions, the Applicant did not.  The hearing for the Dismissal Application was listed for 14 March 2023.

1. On 10 March 2023, an email was sent to the parties notifying them of the Applicant’s non-compliance with the directions concerning the Dismissal Application.  On 12 March 2023, the Applicant requested an adjournment of the Dismissal Application hearing and attached a medical certificate in support of the adjournment request.  On 13 March 2023, the parties were informed that the adjournment had been granted and the hearing was relisted for 4 April 2023. 

1. Due to issues regarding representation, the matter was part heard on 4 April 2023, and continued on 13 April 2023.  As the Applicant had filed neither submissions nor evidence, he was provided with the opportunity to provide viva voce evidence addressing why his substantive application should not be dismissed. 

1. Having heard from the parties regarding their respective positions, the Respondent has made out its case for the application under s 789FC of the Act to be dismissed for want of prosecution. This finding is sufficient to dismiss the application under s 587(1) of the Act. My detailed reasons follow.

Background

1. The broader context and events leading to the Dismissal Application were as follows.

1. On 3 January 2023, the matter was allocated to Chambers.  Parties were informed by email that a conference would be listed at 1000hrs on 17 January 2023.  A notice of listing for the conference issued.

1. On 10 January 2023, the Respondent requested an adjournment of the conference and on 11 January 2023, the parties were advised that the adjournment was granted, and the conference relisted to 24 January 2023.  An amended notice of listing for the conference issued.

1. The conference took place on 24 January 2023 and following the conclusion of the conference the parties conferred and thereafter confirmed their availability to convene for a further conference on 21 February 2023.  A notice of listing issued.

1. On 17 February 2023, the Applicant requested an adjournment of the second conference, in which the parties were to provide an update on the status of the matter.  On that same day, an email was sent to the Applicant requesting he provide evidence in support of his adjournment request by 1500hrs on 20 February 2023.

1. Later in the day on 20 February 2023, the Applicant was telephoned, and a message left to his voicemail, informing him that in the absence of evidence in support of his adjournment request, the conference listed the next morning would proceed. An email issued on 20 February 2023 directing the parties that the second conference would proceed as listed noting that failure to attend may be considered in circumstances where the Commission considers the dismissal of the application for reasons outlined in s 587 of the Act.

1. On 21 February 2023, Chambers called the Applicant to confirm his attendance at the conference.  There was no response from the Applicant.  An email was thereafter sent to the parties noting the Applicant’s non-compliance with the directions of 20 February 2023 and his non-attendance at the conference.   The Applicant was directed to file a response to his failure to attend the conference by 1600hrs on 28 February 2023 (First Directions).  A response was not forthcoming.

1. On 1 March 2023, the Respondent made the Dismissal Application and consequently, directions issued on that same day for the filing of materials (Second Directions).  The Respondent was required to file materials by 1600hrs on 3 March 2023 and the Applicant by 1600hrs on 9 March 2023.  The hearing for the Dismissal Application was listed at 1100hrs on 14 March 2023.

1. Whilst the Respondent complied with the Second Directions, the Applicant did not.  No reason was forthcoming from the Applicant at this point why that was the case.  On 10 March 2023, an email was sent to the parties noting the Applicant’s non-compliance with the Second Directions. 

1. On 12 March 2023, the Applicant emailed Chambers requesting an adjournment of the hearing supported by a medical certificate.  The adjournment was granted for the period of the medical certificate, and on 13 March 2023, the parties were informed that the hearing for the Dismissal Application would be relisted to 4 April 2023.  Whilst the Respondent requested that the Dismissal Application be determined on the papers, in light of the Applicant failing to file any materials, I decided it was appropriate to proceed to hearing and permit the Applicant to provide oral submissions and viva voce evidence if he so chose. 

1. The Dismissal Application was heard on 4 April and 13 April 2023.  At the first day of the hearing, the Respondent objected to the Applicant being represented by the Electrical Trades Union (ETU) given the Applicant was employed as a Water Sampler.  The hearing was adjourned to allow the parties to address the objection, and directions issued accordingly.  Whilst the Applicant filed some documents that sought to address the issue, at the hearing on 13 April 2023, the Applicant represented himself purportedly because a representative of the ETU was unavailable.  It therefore proved unnecessary to make a determination on whether the ETU was able to represent the Applicant for the purpose of the hearing. 

1. At the hearing on 13 April 2023, the Applicant explained his non-compliance with the Dismissal Application directions and his non-attendance at the conference of 21 February 2023, citing a recent hospitalisation for mental health issues.  No direct evidence was adduced to support the Applicant’s contention. 

Legislative framework

1. The Commission is obliged to perform its functions and exercise its powers in a manner that is fair and just, quick, informal and avoids unnecessary technicalities.[1]

1. Under s 587 of the Act, the Commission is provided with authority to dismiss an application of its own initiative or on application if:

a) the application is not made in accordance with the Act; or

b)   the application is frivolous or vexatious; or

c)   the application has no reasonable prospects of success. 

1. It is however accepted that the power to dismiss a substantive application should only be exercised cautiously and sparingly.[2]  This is so because such an outcome results in the extinguishment of a person’s application, which has been made in order to seek some form of relief under a beneficial statutory provision.  In the vernacular, the application is dismissed before an applicant has had her or his ‘day in court’.[3]

1. To determine if an application has no reasonable prospects of success with regard to an application brought under s 587 of the Act, consideration is given to the relevant remedy sought. The relevant remedy in respect of an application 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.’[4]  The discretion to make an order to stop bullying is exercisable if the Commission is satisfied that:

a)   the worker has been bullied at work by an individual or a group of individuals; and

b)   there is a risk that the worker will continue to be bullied at work by the individual or group.[5]

1. Before granting an order under s 789FF, the Commission must be satisfied of the first limb outlined above, and if so, the Commission must also be satisfied there is a risk that the worker will ‘continue’ to be bullied ‘at work’ by the individual or group responsible for the bullying.

Consideration

1. The matter has not yet been listed to address the merits of the Bullying Application under s 789FC. However, in the present case, the Applicant has demonstrated a persistent unwillingness to properly engage with the Commission in respect to his application. The Applicant failed to attend a listed conference and thereafter did not comply with the First and Second Directions. At no point did the Applicant file materials in respect of the Dismissal Application or seek leave to file materials.

1. Whilst the Dismissal Application was part heard on 4 April 2023 due to an issue concerning representation and the matter relisted for 13 April 2023, the Applicant still did not seek to file submissions or evidence in support of his position that his application under s 789FC should not be dismissed. This is in circumstances where he was able to file materials in support of the contention that the ETU was, pursuant to s 596(4)(b)(i) of the Act, able to represent him at the Dismissal Application hearing.

1. At hearing, the Applicant provided oral submissions concerning his non-compliance with the First and Second Directions and non-attendance at the conference.  Shortly stated the Applicant candidly disclosed having been hospitalised for mental health issues.  However, the Applicant has made no attempt to provide evidence to support this contention, despite being warned of the possible consequences arising from his non-compliance and non-attendance.

1. Given this history, I have little confidence that the Applicant will, at some future point, seek to desist from this dilatory conduct.  Whilst the Applicant spoke to his health having improved to allow him to participate in the hearing for the Dismissal Application, I have already observed that he took no steps to comply with the directions leading up to the hearing or otherwise seek an extension of time in which to file materials. 

1. There is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where the Applicant's conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his initiative.[6]  Whilst the Commission is sympathetic to the Applicant’s mental health issues, it can only make a decision concerning the Dismissal Application based upon the evidence before it. 

1. Accordingly, I cannot be satisfied that there is likely to be a significant change in the current inertia of the proceedings.  To leave the application in this state would be contrary to the proper administration of justice.  It represents a significant prejudice to both the Respondent and the Person Named. 

1. In Chand v State Rail Authority of (NSW), the Full Bench expressed at paragraph [48]:

The classic circumstances that enliven a court’s discretion to dismiss an action for want of prosecution are a failure, typically a repeated failure, by a plaintiff to comply with directions of the court or a prolonged period of inactivity on the part of a plaintiff.[7]

Conclusion

1. In my view, the Respondent has made out its case for the application under s 789FC of the Act to be dismissed for want of prosecution. This finding is sufficient to dismiss the application under s 587(1) of the Act. An Order[8] dismissing the Bullying Application will be issued along with this decision.

DEPUTY PRESIDENT

Appearances:

M Sands, Applicant.
N Smith, for the Respondent.

Hearing details:

2023.
Perth (by telephone):
4, 13 April.

[1] Fair Work Act 2009 (Cth) s 577.

[2] Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station [2019] FWCFB 2925, [31].

[3] Application by Summers [2019] FWC 609, [28].

[4] Fair Work Act 2009 (Cth) s 789FF(1).

[5] Ibid s 789FF(1)(b)(i)–(ii).

[6] Viavattene v Health Care Australia[2013] FWCFB 2532, [39].

[7] (2006) 159 IR 5, 14 [48].

[8] PR761122.

Printed by authority of the Commonwealth Government Printer

<PR760154>