Mr Jayson Reed v Bis Industries Limited

[2020] FWC 3569

[2020] FWC 3569

FAIR WORK COMMISSION

DECISION

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

Mr Jayson Reed
v
Bis Industries Limited; Mr Chris Carleton
(AB2020/169)

COMMISSIONER BOOTH BRISBANE, 20 JULY 2020

Application for an FWC order to stop bullying – employee resigned employment – applicant no longer employee of the employer principal – application made under s.587 to dismiss application due to no reasonable prospects of success – found employee no longer a worker – s.587 application granted – s.789FC application dismissed.

[1] On 10 March 2020, Mr Jayson Reed (the Applicant) lodged an application for an order to stop bullying under s.789FC of the Act. Mr Reed alleged that he was bullied at his workplace, Bis Industries Limited (Bis/the Employer Principal), by Mr Chris Carleton (the Person Named), and sought orders that the bullying be stopped.

[2] Mr Reed had been employed by Bis since 9 August 2018 at the Anglo American Moranbah North Mine. Mr Reed alleged he had been bullied by Mr Carleton, who was the Site Manager for Moranbah North.

[3] The matter was allocated to my Chambers for consideration and was set down for a conference on 23 April 2020. This conference was vacated and relisted for 7 May 2020. Before the relisted conference could proceed, Bis advised my Chambers by way of email on 28 April 2020 that Mr Reed had resigned from his employment effective 23 April 2020. In their email, Bis said that Mr Reed was longer engaged in connection with the workplace where he alleged the bullying conduct occurred and is no longer a person who can be exposed to the alleged bullying.

[4] On 5 May Mr Reed wrote to my Chambers stating that he believed the application should proceed as he had resigned for economic reasons. I wrote to the parties advising them that as Mr Reed had resigned, this would need to be dealt with as a jurisdictional issue should he wish to proceed with the application for an order to stop bullying.

[5] Mr Reed wrote a further email on 6 May 2020 stating his employment had not been finalised as he had not received his full entitlements, and that he considered he was still employed by Bis. I adjourned the conference to allow the parties to resolve payment of entitlements due to Mr Reed on termination of his employment. On 7 May 2020, Bis confirmed that all outstanding entitlements had been paid.

[6] On 5 June 2020, I wrote to the parties requesting Mr Reed advise whether he considered the matter had been resolved. Mr Reed replied and said that he wished to proceed with his application as he considered Bis had not investigated his complaint in an open and non-biased manner. Bis wrote to my Chambers on 11 June 2020 stating their position that given that Mr Reed is no longer employed by Bis and the Commission does not have jurisdiction to hear the matter in these circumstances, it would be prudent the matter be set for a jurisdictional hearing, prior to any actual hearing.

[7] I issued directions for filing of material in relation to the jurisdictional objection only, being that Mr Reed was no longer in an employment/contractual relationship with the Bis. On 24 June 2020, Bis filed an application under s.587 of the Act seeking Mr Reed’s application be dismissed on the basis that it has no reasonable prospects of success. The s.587 application was accompanied by an outline of submissions and a witness statement from Mr Niall Willis, Human Resource Business Partner for Bis.

[8] Mr Reed provided submissions in the form of an email to Chambers and Bis on 5 July 2020.

[9] This decision deals only with the jurisdictional objection raised by Bis and the s.587 application filed by Bis as the Employer Principal.

LEGISLATION

[10] At ss. 789FC and 789FD, the Act sets out the circumstances in which a worker can make an application for an order from the Commission to stop bullying.

[11] Relevant to this decision, s.789FF of the Act sets out what must be considered if the Commission is to make orders to stop bullying:

Section 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] Section 587 of the Act sets out when the Commission can dismiss an application:

Section 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.

APPLICANT’S SUBMISSIONS

[13] Mr Reed’s submissions did not address the contention that he was no longer an employee of Bis. Mr Reed’s submissions focussed on the substantive merits of his application.

[14] Mr Reed submitted that Bis did not investigate his complaints or make any effort to assist him with his matter, and that despite asking on numerous occasions for the matter to be investigated, this was not done. Mr Reed said that when he tried to discuss his complaint with Mr Carleton and Mr Willis, he was not allowed to have another person present for the call, which he disputed as he said he did not trust Mr Willis. Mr Reed said he offered to travel to Moranbah for a face to face meeting but was refused.

[15] Mr Reed alleged that Bis had made it impossible for him to work for them, citing changes in his roster while he was away from work due to stress and anxiety. He said he challenged this at the time in writing.

[16] In correspondence on 5 May and 6 May, Mr Reed confirmed he had resigned due to economic reasons. In particular, on 6 May 2020, Mr Reed wrote to Chambers stating:

“Good Morning,

I understand that if I am no longer employed that this cannot proceed. Yes I have resigned due to my financial reasons, However my employment with BIS Industries

has not been finalised due to me not receiving my full entitlements as of today.

This then means that I am still employed by BIS Industries.

regards

Jayson Reed”.

EMPLOYER PRINCIPAL’S SUBMISSIONS

[17] Bis submitted s.789FC of the Act does not define who or what a worker is. It instead refers to the definition in the Work Health and Safety Act 2011 (the WHS Act) Bis submitted that for the purposes of the WHS act, a worker is an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer.

[18] Bis said that at the time of making his application, Mr Reed was employed by Bis and fit the definition of a worker. Bis said that at the time the matter was listed for conference on 7 May 2020, Mr Reed was no longer employed by Bis, and that on 23 April 2020, Mr Reed sent an email to Mr Willis advising that he was resigning from his employment effective immediately. The following day, Mr Willis emailed Mr Reed and confirmed his resignation. Bis submitted Mr Reed is therefore no longer a worker of the Respondent.

[19] Bis submitted that as Mr Reed is no longer a worker, he cannot continue to be allegedly bullied at work. Bis said that Mr Carleton had been transferred to the Glencore operated Newlands Mine approximately 136 kilometers away on 1 April 2020 for operational reasons and that Mr Reed could not allegedly be bullied by him.

[20] Bis argued that the Commission only has jurisdiction to make an order under s.789FF of the Act if the Commission is satisfied there is a risk of continued bullying of the Applicant at work. Where there is not a risk of future bullying at work there will be no reasonable prospect of success of an application for an order to stop bullying.

[21] Bis referred to the decision of Gostencnik DP in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank and Another [2014] FWC 3408 which considered whether there was a reasonable prospect of success in an application under s.789FC where the employment relationship had ended. In that case, the applicant was challenging his dismissal and seeking reinstatement. Bis quoted Gostencnik DP and said:

“[15] As s. 789FF(b) makes clear, I must be satisfied not only that Mr Shaw has been bullied at work by an individual or group of individuals but also that there is a risk that he will continue to be bullied at work by that individual or group of individuals. Therein lays the difficulty for Mr Shaw. It seems to me that I have no power to make an order to stop bullying unless I can be satisfied relevantly that there is a risk that at work Mr Shaw will continue to be bullied by the individual or group of individuals identified in his application.

[16] It is clear that Mr Shaw is no longer employed by ANZ. The employment relationship has ended. That Mr Shaw is taking steps to seek a remedy in relation to his dismissal and that may result in reinstatement at some point in the future does not have a bearing on the question that I must answer and is speculative and uncertain. It seems to me clear that there cannot be a risk that Mr Shaw will continue to be bullied at work by an individual or group of individuals identified in his application because Mr Shaw is no longer employed by ANZ and therefore is no longer at work.

[17] It necessarily follows that I do not have power to make an order to stop bullying and, as a consequence, I am satisfied that Mr Shaw’s application has no reasonable prospect of success.”

[22] Bis said that applying the facts of Shaw to this matter, the Commission should dismiss the application on the grounds it has no reasonable prospects of success as:

•  He is no longer a worker, and it is common ground that the employment relationship has ended;

•  As such there cannot be a risk of Mr Reed being bullied at work by the individuals identified in his application because he is no longer at work;

•  Even if Mr Reed remained employed, there is no risk of being bullied at work by the individuals identified in his application because they are no longer at the workplace; and

•  Mr Reed will not return to the workplace in any capacity nor are there other dismissal related proceedings which are being contested elsewhere in the Fair Work Commission.

CONSIDERATION

[23] The powers of the Commission in relation to applications for orders to stop bullying could perhaps be described as broad in scope, but narrow in application. Where bullying is found and orders are to be made, they can be broad, to further bullying does not take place. However, the circumstances in which an application can be brought are narrow.

[24] Usually where an employee has been dismissed or resigns, or the employment relationship otherwise concludes, there will be no further risk of bullying for the reason that the applicant will no longer be at work or in a position to be bullied. In most cases, there is no risk of further bullying, which must be established for an application under s.789FC to succeed and orders to be made.

[25] The decision to dismiss an application on the basis an employee has been dismissed requires a consideration of the particular circumstances of the parties, including whether or not an individual will return to a workplace in some capacity as a worker.

[26] Orders made to stop bullying at work are not intended by the legislation to be remedial, punitive or compensatory. The role of the Commission, and any remedy awarded, is preventative. The Commission must consider whether there is an ongoing risk of bullying and, if so, what steps should be taken to prevent that risk.

[27] Mr Reed acknowledged in his email of 5 May 2020 that he had resigned. This was at no stage disputed. Regardless of the reasons of Mr Reed’s resignation, his employment with Bis ceased on 23 April.

[28] Further, Mr Reed acknowledged on 6 May 2020 that he understood that if he was no longer employed, his application could not proceed. At that time, Mr Reed contended he remained an employee because his final entitlements had not been paid. Bis advised all entitlements were paid on 7 May 2020 and Mr Reed has not disputed this is the case.

[29] It is clear Mr Reed feels that matters between himself and Mr Carleton, and other staff at Bis, are not resolved and were not dealt with to his satisfaction while he remained employed. This does not establish any risk of further bullying, and indeed, as this is a threshold issue, there can be no finding as to whether the alleged behaviour was bullying or not.

[30] I consider that in line with Shaw, 1 Mr Reed no longer works for Bis and no longer is at risk of further bullying. There is nothing in the material suggesting he will be reinstated or is seeking such. On the material before the Commission, it is clear that there cannot be a risk that Mr Reed will continue to be bullied at work by Mr Carleton because Mr Reed is no longer employed by Bis and therefore is no longer at work.

[31] As I cannot make any order to stop bullying in this case, I am satisfied that Mr Reed’s application has no reasonable prospect of success.

CONCLUSION

[32] I find that the Commission does not have jurisdiction to deal with the matter and, further, that Mr Reed’s application under s.789FC has no reasonable prospect of success. The s.587 application is granted and the application is dismissed.

COMMISSIONER

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 1   Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank and Another [2014] FWC 3408