Mr Igor Grabovsky

[2020] FWC 1735

[2020] FWC 1735

FAIR WORK COMMISSION

STATEMENT

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

Mr Igor Grabovsky
(AB2019/601)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 31 MARCH 2020

Application for an FWC order to stop bullying.

[1] Mr Grabovsky filed a stop bullying application (AB2019/601) on 21 October 2019. He named the Fair Work Commission (Commission) as the employer respondent. Mr Grabovsky contends that while representing his wife, Mrs Inna Grabovsky in other proceedings before the Commission, he was bullied by each of the persons set out at Attachment A to the stop bullying application, being a number of current and former Commission members, the General Manager and a staff member of the Commission.

[2] On 18 November 2019, the Commonwealth of Australia, on behalf of the Commission, lodged a response to the stop bullying application in which it raised a number of jurisdictional objections.

[3] Following a directions hearing 1, I issued a Statement2 and Directions3 dated 10 December 2019 which:

1. Provided reasons for allowing, on a provisional basis, the Australian Government Solicitor to represent the Commonwealth of Australia (the provisional representation decision);

2. Provided reasons for the ex tempore decision of 9 December 2019 refusing Mr Grabovsky’s application to recuse myself (the recusal decision);

3. Adjourning Mr Grabovsky’s application for interim orders, pending determination of jurisdictional issues (the adjournment decision); and

4. Refusing Mr Grabovsky’s request that these proceedings be postponed (the postponement refusal decision).

[4] I directed that:

“1. The Commonwealth of Australia (Commonwealth) provide a written submission on each of the jurisdictional issues it advances by close of business (5.00pm ACDT) 24 December 2019.

2. Mr Grabovsky file a written submission on the jurisdictional issues by close of business (5.00pm ACDT) 14 January 2020.

3. A person named, if they so wish, file a written submission on the jurisdictional issues by close of business (5.00pm ACDT) 14 January 2020.

4. The Commonwealth file a written submission in reply by close of business (5.00pm ACDT) 28 January 2020.

5. …..

6. …..

7. Mr Grabovsky and the Commonwealth, in making their written submissions on jurisdiction, are directed to also address the view expressed by former Deputy President Gooley in her letter of 5 December 2019, being her contention that the application insofar as it concerns former members of the FWC should be withdrawn or dismissed on the basis (so it is said) that former members no longer exercise jurisdiction over proceedings and are thereby incapable of placing Mr Grabovsky at “risk” of future bullying at work within the meaning of section 789FF(1)(b) of the Fair Work Act 2009.

8. Should the Commonwealth or Mr Grabovsky wish to place further submissions before me on representation that they do so according to the aforementioned timetable; that is, the Commonwealth by 24 December 2019, Mr Grabovsky by 14 January 2020 and the Commonwealth in reply by 28 January 2020.”

[5] Mr Grabovsky lodged an appeal against the Statement and Directions. Mr Grabovsky also sought a stay pending the hearing and determination of his appeal.

[6] The stay application was not granted. 4

[7] On 20 March 2020 a Full Bench of the Commission 5 dismissed Mr Grabovsky’s appeal against the provisional representation decision, the recusal decision, the adjournment decision, the postponement refusal decision and the Directions. The Full Bench also dismissed the appeal against the stay decision.

[8] Following the Directions, I have received the following:

•  Submission of the Commonwealth on jurisdiction dated 24 December 2019;

•  A letter dated 14 January 2020 from Mr Grabovsky specifically stated to have not been filed in accordance with the Directions (though filed by the date stipulated by the Directions); and

•  Submissions in reply by the Commonwealth on jurisdiction dated 28 January 2020.

[9] No substantive submission by a person or persons named has been filed other than the letter from former Deputy President Gooley dated 5 December 2019 (referred to in Direction [7]).

[10] In the Statement of 10 December 2019, I made the following observation:

“[37] I am satisfied that the jurisdictional issues raised by the AGS on behalf of the FWC require determination as threshold issues.

[38] I consider that the jurisdictional issues, raising as they do legal questions, are amenable to being determined on the papers. I consider doing so is the most efficient manner of dealing with the jurisdictional issues. Evidence does not need to be called to deal with the questions of law raised.”

[11] In light of the Full Bench decision of 20 March 2020, I will now proceed to determine the jurisdictional issues raised by the Commonwealth.

[12] In making that decision I will have regard to the materials before me including the Commonwealth’s response of 18 November 2019, the Commonwealth’s submissions of 24 December 2019 and 28 January 2020, Mr Grabovsky’s application of 21 October 2019 and his material of 14 January 2020, former Deputy President Gooley’s letter of 5 December 2019, and submissions made at the directions hearing on 9 December 2019.

[13] In the Statement, I observed on the question of representation:

“[30] I made this provisional decision for the purposes of the directions hearing and subsequent proceedings on the application, until further order. I foreshadowed that I would issue directions for further submissions on the question of representation before considering whether my provisional decision should be made final.”

[14] Accordingly, I will also consider the provisional nature of the representation decision in light of the further submissions and materials on that question received since 9 December 2019.

[15] A decision on each of these matters is reserved.

[16] Mr Grabovsky, the Commonwealth and persons named will be advised of my decision and reasons in due course.

[17] This further Statement will be made available to each of them, and published.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

PR717969

 1   9 December 2019

 2   [2019] FWC 8314

 3   PR715005

 4   [2020] FWC 615

 5   [2020] FWCFB 1014