Mr Jiahao Liao
[2022] FWC 3378
•23 DECEMBER 2022
| [2022] FWC 3378 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Mr Jiahao Liao
(SO2022/505)
| COMMISSIONER SCHNEIDER | PERTH, 23 DECEMBER 2022 |
Application for an FWC order to stop bullying
This decision concerns an application made by Mr Jiahao Liao (Mr Liao or the Applicant) under section 789FC of the Fair Work Act 2009 (the Act) for an order to stop bullying. This Decision concerns whether the application should be dismissed pursuant to section 587 of the Act. In this instance, I have decided to dismiss the Applicant’s application for an order to stop bullying under section 587(1) of the Act. My detailed reasons follow.
History of the application
The application was lodged on 13 October 2022. In summary, the Applicant alleges he has been bullied by a group of co-workers who were in his direct team.
After lodging the application, the Commission called the Applicant twice on 14 October where initial matters were discussed.
Following the initial conversations, the Commission’s staff attempted to contact the Applicant by telephone, SMS, and email five times requesting action to complete his application.
The Commission’s staff then successfully called and spoke to the Applicant regarding his incomplete application on 19 October 2022.
The Commission then attempted to prompt contact from the Applicant three times by email and telephone.
The Applicant called the Commission and again was requested to provide further information on 3 November 2022.
The Applicant did not provide further details for his application despite being prompted a further four times with no response.
The matter was allocated to the National Practice Leader who approved the application being served on the responding parties on 14 November 2022.
The matter was allocated to my Chambers on 24 November 2022.
On 14 December 2022 my Chambers issued a Notice of Listing for a conference at 11:00AM on 20 December 2022. The Notice of Listing requested that the parties join 10 minutes prior to the listing time.
On the day of the conference, the Applicant did not present for the conference prior to the listing time as requested.
My associate attempted to call the Applicant at 11:00AM and left a voicemail regarding his attendance.
My associate then emailed the Applicant, at 11:02AM, requesting he urgently join the conference and provided the link to join again.
I instructed my associate to allow 10 minutes past the listed start time before commencing, in the hopes the Applicant would join.
At 11:07AM my associate again attempted to call the Applicant and left a further voicemail requesting he join the conference.
The Applicant did not join the conference, nor did he attempt to contact my Chambers.
The conference commenced at 11:10AM.
Due to the Applicant’s absence, no significant discussions could he had between the Commission and the Employer. The Employer briefly detailed their current position and issues with the application. I then informed the Employer that my Chambers would contact the parties regarding the Applicant’s non-attendance.
The conference was adjourned at 11:25AM, the Applicant had not attempted to join or contact my Chambers at any point.
At 12:25PM that same day, my Chambers issued correspondence regarding the Applicant’s non-attendance. The email noted that the Commission was now considering dismissing the matter. In that correspondence, I directed the Applicant to provide an explanation regarding his non-attendance and to file submissions regarding the issues in his application and in response to the Commission dismissing the matter.
The Applicant was directed to provide his response by midday, 21 December 2022. No response was received.
The Employer provided submissions regarding the matter being dismissed on 22 December 2022.
To date, my Chambers has not received any correspondence from the Applicant.
Legislation
Section 587 of the Act 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.”
Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.
I note that the power to dismiss a substantive application should only be exercised cautiously, not hastily, and where there is a clear basis for doing so.[1] Such a decision results in the extinguishment of a party’s application, which has been made in order to seek some form relief from a beneficial statutory provision.[2]
Employer Submissions
The Respondent submits that the application should be dismissed for the following reasons:
·Under section 587(1)(b) of the Act, as the application is frivolous or vexatious;
·Or, in the alternative, under section 587(1)(c) of the Act as the application has no reasonable prospect of success.
The Employer submits that the Applicant is not at continued risk of the alleged bullying. The Employer highlights that the Applicant has been removed from the team and office space occupied by the persons named.
The Employer submits that the Applicant himself is the aggressor in the dispute, a sentiment that is echoed by the persons named.
The Employer relies firstly on the fact that the Applicant is no longer in physical proximity with the persons named, secondly on the quantity of evidence in support of the assertion that the Applicant is in fact the bully, and thirdly on the Applicant’s non-compliance as support for a finding that the application is frivolous and vexatious, or has no reasonable prospects of success, and should be dismissed.
Consideration
The Applicant decided to make an application under section 789FC of the Act seeking an order to stop bulling. The Applicant however has not engaged in any substantial way with his application. The Applicant did not attend the conference as directed by the Commission nor has he responded to requests and directions of the Commission.
There is a clear pattern emerging; the Applicant does not respond when action on his behalf is requested by the Commission.
My associate tried on numerous occasions to contact the Applicant on the day of the conference, via both telephone and email. The Applicant has not returned any of the missed calls or email communication.
The Employer has submitted that the application should be dismissed under section 587(1)(b) of the Act as the application is frivolous or vexatious or in the alternative under section 587(1)(c) of the Act as the application has no reasonable prospects of success.
As the Applicant is not communicating with the Commission in relation to his application, it is difficult to correctly assess the Employer’s claims or the merits of the matter.
The Commission has attempted to prompt the Applicant to share his side of the story, yet he remains silent.
As the Applicant is not communicating with the Commission in relation to his application, the Commission is unable to progress this matter or form any reliable conclusions about the validity of his claims or the counter claims made by the Employer.
Conclusion
The power to dismiss an application if the non-compliance was unreasonable is discretionary. The Applicant has failed to comply with directions of the Commission. The Applicant is clearly aware of the proceedings and was receiving correspondence from both the responding parties and the Commission. The Applicant has never sought or requested an extension from the Commission nor provided reasonable explanation, or any explanation, for the continued non-compliance.
I am satisfied that the Applicant, has unreasonably and repeatedly failed to comply with directions of the Commission relating to his application. The Full Bench has held that section 587(1) of the Act provides for the dismissal of a matter where the applicant has failed to prosecute their case without examining the merits.[3]
Consequently, Mr Liao’s application will now be dismissed. An Order to that effect will be issued in conjunction with this decision.[4]
COMMISSIONER
[1] [1964] HCA 69; (1964) 112 CLR 125 at [8].
[2] [2019] FWC 4399 at [12].
[3] [2011] FWAFB 7498 at [19].
[4] [PR749279].
Printed by authority of the Commonwealth Government Printer
<PR749278>
0
0
0