Mr Glenn Preddy

[2021] FWC 6217

[2021] FWC 6217

FAIR WORK COMMISSION

DECISION

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

Mr Glenn Preddy
(AB2021/337)

COMMISSIONER JOHNS SYDNEY, 8 NOVEMBER 2021

Application for an FWC order to stop bullying – summary dismissal application - whether application has no reasonable prospects of success

Background

[1] This decision deals with an application to the Fair Work Commission (Commission) made by Mr Glenn Preddy (Applicant) for an order to stop bullying under s.789FC of the Fair Work Act 2009 (Cth) (FW Act). The Applicant is employed by The Northcott Society (Northcott) as a Disability Support Worker. He is currently assigned to a supported group accommodation service known as the Pines Group Home in Thurgoona, New South Wales (Pines).

[2] The Applicant is a long-standing employee of Northcott. By all accounts the Applicant is a dedicated Disability Support Worker. However, from time to time, he has had difficult relationships with co-workers (principally management employees). The present application is not the first application that the Applicant has lodged in the Commission in attempt to address difficulties he has experienced in the workplace.

[3] The Applicant has worked at the Pines home, most recently, for approximately 2 years. Prior to the most recent move to the Pines the Applicant worked at other homes run by Northcott. The Applicant’s place of work is not expressly provided for in his contract of employment.

[4] The Applicant alleges bullying conduct by two individuals who are employed by Northcott as an Area Manager and a Service Coordinator (Named Persons/Respondents). The Service Coordinator is responsible for the day-to-day operation of the Pines whilst the Area Manager has responsibility over the Pines and three other homes of Northcott. The Area Manager provides support to the Service Coordinators of each home. The allegations of bullying occur in the context of disciplinary processes involving the Applicant. The Applicant denies any wrongdoing.

[5] The alleged bullying behaviour occurred in the approximate period of September 2020 to May 2021.

[6] Since June 2021 the Applicant has been unfit for work. Before returning him to active duties Northcott seek a medical clearance from the Applicant. Once cleared to return to work, but before assigning him duties, Northcott want to meet with the Applicant to discuss the outstanding disciplinary issue.

[7] The Applicant seeks an Order from the Commission that the alleged unreasonable treatment of the Applicant by the Named Persons is to immediately stop.

Alleged bullying behaviour

[8] The details of the alleged behaviour of the Named Persons are set out in the chronology of alleged bullying table 1 filed by the Applicant on 24 August 2021.

[9] The Area Manager and Service Coordinator each deny having engaged in bullying behaviours. In short, they say that they were, at all times, engaging in reasonable management action

[10] However, the evidentiary contest between the parties does not need to be resolved. This is because, as will become evident (below), there is no continuing risk to the safety of the Applicant. Consequently,

a) the Commission does not have jurisdiction to make any stop-bullying order; and there is no utility in determining the rights and wrongs of historical matters.

Legislation

[11] Section 789FF of the FW 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.

(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.”

[12] The Fair Work Amendment Bill 2013 Revised Explanatory Memorandum explained the provisions as follows:

“New section 789FF – FWC may make orders to stop bullying

119. New subsection 789FF(1) empowers the FWC to make any order it considers appropriate to prevent a worker from being bullied at work by an individual or group of individuals. Before an order can be made, a worker must have made an application to the FWC under new section 789FC and the FWC must be satisfied that the worker has been bullied at work by an individual or group of individuals. There must also be a risk that the worker will continue to be bullied at work by the individual or group. Orders will not necessarily be limited or apply only to the employer of the worker who is bullied, but could also apply to others, such as co-workers and visitors to the workplace. Orders could be based on behaviour such as threats made outside the workplace, if the threats relate to work.

120. The power of the FWC to grant an order is limited to preventing the worker from being bullied at work, and the focus is on resolving the matter and enabling normal working relationships to resume. The FWC cannot order reinstatement or the payment of compensation or a pecuniary amount.

121. Examples of the orders that the FWC may make include an order requiring:

•  the individual or group of individuals to stop the specified behaviour;

•  regular monitoring of behaviours by an employer;

•  compliance with an employer’s workplace bullying policy;

•  the provision of information and additional support and training to workers;

•  review of the employer’s workplace bullying policy.

122. New subsection 789FF(2) provides that, when considering the terms of the order, the FWC can take into account any factors that it considers relevant, but must have regard to the following (to the extent that the FWC is aware):

•  any final or interim outcomes of an investigation into the matter that is being undertaken by another person or body;

•  any procedures available to the worker to resolve grievances or disputes;

•  any final or interim outcomes arising from any procedures available to the worker for resolving grievances or disputes.

123. These factors may be used by the FWC to frame the order in a way that has regard to compliance action being taken by the employer or a health and safety regulator or another body, and to ensure consistency with those actions.”

Conciliation

[13] On 8 September 2021 a conciliation of the matter was conducted without success.

[14] During the conciliation Northcott disclosed that it intended to move Mr Preddy from the Pines to a different location. A move in work location would change the Applicant’s line of management. In short, the Named Persons would no longer have managerial responsibility over the Applicant.

[15] I advised the Applicant that I could not make orders against people who no longer posed a risk to his health and safety. Consequently, I gave the Applicant 7 days to consider his position and directed him to either; ask that the matter be re-programmed for hearing (noting which of the Named Persons, either of them or both, he continues to want orders made against) or file a Notice of Discontinuance.

[16] On 14 September 2021 Mr Preddy wrote to my Chambers asking that the matter be re-programmed for hearing with both Named Persons.

[17] Consequently, the matter was re-programmed for hearing on 30 September 2021 and 1 October 2021.

Summary dismissal application

[18] On 22 September 2021 Mr Maroney, on behalf of the Named Persons, filed an application seeking that, pursuant to Section 587 of the FW Act, the substantive proceedings be summarily dismissed on the basis that Mr Preddy’s application against the Named Persons has no reasonable prospects of success (Summary Dismissal Application).

[19] Section 587 of the FW Act sets out when the Commission may dismiss an application. Section (1) and (3) of the Act are in the following terms:

“(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.

…

(3) The FWC may dismiss an application:

a) on its own initiative; or

b) on application.”

[20] Consequently, the hearing on 30 September was vacated and the hearing on 1 October 2021 was converted into a hearing of the Summary Dismissal Application.

[21] At the hearing the Applicant represented himself. The Named Persons were represented by Mr Luke Maroney. Mr Maroney called Stefania Morisio, Senior Operations Manager of The Northcott Society, as a witness.

[22] In coming to this decision, the Commission, as presently constituted, has had regard to the filed material (listed below), the oral evidence and other documents tendered during the determinative conference:

Exhibit	Document title	Document date
1	Summary Dismissal Application	22 September 2021
2	Witness Statement of Stefania Morisio	22 September 2021
3	• SM-1	7 May 2021
4	• SM-2	27 May 2021
5	• SM-3	26 May 2021
6	• SM-4	16 July 2021
7	• SM-5	16 July 2021
8	Submissions in response to Summary Dismissal Application	30 September 2021
9	• JLS Psychology	17 September 2021

Evidence

[23] The Respondent’s evidence was from its Senior Operations Manager, Ms Stefania Morisio. Ms Morisio’s evidence was that Northcott intend to move the Applicant from the Pines.

[24] I am satisfied that Northcott intend to move the Applicant because a guardian/relative of a resident at the Pines does not want the Applicant caring for their relative. The Applicant considers the relative’s demand to be unfair. That may well be the case. However, Northcott is entitled to act upon to the relative’s demands about who cares for their loved one.

[25] It was the evidence of Ms Morisio that the Service Coordinator would therefore no longer have any workplace involvement with the Applicant. 2

[26] It was also the evidence of Ms Morisio that Northcott currently proposes to move the Applicant to 26 The Avenue, Thurgoona (Avenue).

[27] A move to the Avenue would mean that the Area Manager in these proceedings would also no longer have managerial involvement with the Applicant. 3

[28] During the hearing Ms Morisio gave evidence about the appropriateness of the Avenue for the redeployment of the Applicant as opposed to other Northcott group homes. 4 The Applicant did not dispute this evidence.

Respondents’ submissions

[29] By reason of the factual matters arising out of Ms Morisio’s evidence, the Respondents contend there is no risk that the Applicant will be bullied at work by either of the Named Persons (noting that they deny they have ever done so). It is therefore further contended that there are no reasonable prospects that the Applicant could satisfy the Commission that the Named Persons would pose any future risk to him. 5

[30] During the hearing the Applicant conceded that if he were moved from the Pines then there would be no continuing risk to his health and safety from the Named Persons. 6

[31] The Respondents further submitted that the conduct of the Area Manager which the Applicant seeks orders against are not addressed in the Applicant’s evidence. The Respondents submitted that the Applicant put no evidence before the Commission of any risk caused by any repeated conduct of the Area Manager and therefore there is not sufficient evidence to make out the elements required to be successful in the substantive proceedings. 7 For the reasons already stated I do not need to address this evidentiary matter.

Applicant’s submission

[32] On 30 September 2021 the Applicant filed a document setting out his opposition to the Summary Dismissal Application. 8

[33] The Applicant stated that he does not agree that summarily dismissing his application would be a reasonable outcome for him, having regard to the way that he has been, in his view mistreated by the Respondents. The Applicant contended that summarily dismissing his application seems unlikely to culminate in an end to the matter, but perhaps mark the antecedent to future industrial disharmony. 9

[34] Further, the Applicant expressed his disagreement about the transfer from the Pines. He claimed that Northcott had not consulted with him regarding the transfer. However, it is the evidence before this Commission that Northcott wrote to the Applicant on 16 July 2021 in an attempt to consult with him regarding his immediate redeployment from the Pines. 10

Consideration

[35] In Ms LP 11Commissioner Hampton set out the relevant principles in relation to the power and discretion for the Commission to make orders. He observed,

[21] Having regard to the provisions of the FW Act, there are two prerequisites to the making of orders in matters of this kind. Firstly, a finding that the worker has been bullied at work by an individual or a group of individuals; and secondly, that there is a risk that the worker will continue to be bullied at work by the individual or group concerned.

[22] Accordingly, where there is no risk that the applicant worker will continue to be bullied at work by the individual or group concerned, there is no prospect that the s.789FC application can succeed. Equally, where such a risk is found, the Commission may make an order preventing the worker from being further bullied by that individual or group. This means that any orders must be directed towards the prevention of relevant future unreasonable conduct and be informed by, but not necessarily limited to, the prior unreasonable conduct as found. However, any orders must deal with the actual future risk, based upon appropriate findings, and having regard to the considerations established by s.789FF(2) of the FW Act.

[23] Subject to the above, and the constraint that an order cannot be made requiring payment of a pecuniary amount, the making of an order is a matter of discretion to be exercised judicially in the circumstances of each case.

[24] Accordingly, the power of the Commission to grant an order is limited to preventing the worker from being bullied at work, and the focus is on resolving the matter and enabling normal working relationships to resume in a mutually safe and productive manner.

[25] Orders made in this jurisdiction are enforceable by the Courts as a civil remedy provision. This means that orders should not be made lightly and where they are made, they should be expressed in such a manner that clearly establishes enforceable obligations upon relevant identified parties.

[36] I respectfully adopt the Commissioner’s reasoning.

[37] In Shehu, 12 Commissioner Lee observed,

[28] It is also important to note that the anti-bullying jurisdiction is not designed to punish persons who have behaved unreasonably towards others in the past. Rather, it is centred on stopping future bullying behaviour and this was reinforced in the Full Bench decision in Re McInnes: 13

“Importantly, a s.789FF order operates prospectively and is directed at preventing the worker being bullied at work. The Commission is specifically precluded from making an order requiring the payment of a pecuniary amount, hence it cannot make an order requiring a respondent to pay an amount of compensation to an applicant. The legislative scheme is not directed at punishing past bullying behaviour or compensating the victims of such behaviour. It is directed at stopping future bullying behaviour.” 14

[29] In a number of previous decisions, the Commission has taken into account any change in circumstances in the workplace when considering whether there is a risk that the worker will continue to be bullied at work and/or whether it will exercise its discretion to issue an order or not. 15

[38] I respectfully adopt the Commissioner’s reasoning.

[39] Having regard to the evidence of Ms Morisio (about the intention of Northcott to move the Applicant so that he is no longer working at the Pines), I am satisfied that circumstances will change when the Applicant is fit to return to work.

[40] I am further satisfied that,

a) neither of the Named Persons will have managerial responsibility for the Applicant in the future,

b) there is no risk that the Applicant will be bullied at work by the Named Persons (noting that they deny every having done so), and consequently,

c) there is no prospect that the s.789FC application can succeed.

[41] For these reasons, I am not satisfied that there is a risk that the Applicant will continue to be bullied at work by the persons named in his application pursuant to s.789FF(1)(b)(ii). Therefore, even assuming that the first jurisdictional prerequisite of s.789FF(1)(b)(i) was satisfied (and I have made no finding of fact about it), there would not be jurisdiction to make an order to stop bullying.

[42] Because there is no jurisdiction to make an order to stop bullying it necessarily follows that the application has no reasonable prospects of success.

Conclusion

[43] The application is dismissed pursuant to s.587 of the Act. An order will be issued concurrently with this decision and the Commission will close its file.

COMMISSIONER

Appearances:

G Preddy on his own behalf as the Applicant
L Moroney on behalf of the Named Persons

Hearing details:

2021
Sydney
1 October

Printed by authority of the Commonwealth Government Printer

<PR735283>

 1   Chronology of Alleged Bullying Behaviours (Exhibit 121), at Substantive Court Book p 554.

 2  Summary Dismissal Application (Exhibit 1), at Summary Dismissal Application Court Book p 4.

 3   Witness Statement of Stefania Morisio dated 22 September 2021 (Exhibit 2), at Summary Dismissal Application Court Book p 9.

 4   Transcript PN132-PN143.

 5   Summary Dismissal Application (Exhibit 1), at Summary Dismissal Application Court Book p 5.

 6   Transcript PN22 and PN67.

 7   Summary Dismissal Application (Exhibit 1), at Summary Dismissal Application Court Book p 5.

 8   Response to Summary Dismissal Application dated 30 September 2021 (Exhibit 8), at Summary Dismissal Application Court Book p 17.

 9   Ibid.

 10   Transcript PN41-PN42 and SM-5 dated 16 July 2021 (Exhibit 7), at Summary Dismissal Application Court Book p 16.

 11   [2016] FWC 763.

 12   [2020] FWC 4544.

 13   Re McInnes[2014] FWCFB 1440.

 14 Ibid at paragraph [9].

 15   8 See Re Fsadni[2016] FWC 1286; Darren Lacey and Chris Kandelaars v Murrays Australia Pty Limited and Andrew Cullen[2017] FWC 3136.