Mr Joseph Salama v Sydney Trains

[2018] FWC 1845

[2018] FWC 1845

FAIR WORK COMMISSION

DECISION

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

Mr Joseph Salama
v
Sydney Trains; Mr Laurence New; Ms Amba Francisco; Mr Charlie Keech; Ms Kirsty Sweeting
(AB2017/280)

DEPUTY PRESIDENT SAMS SYDNEY, 11 APRIL 2018

Application for an order to stop bullying – various other related proceedings – disciplinary action – dismissal of applicant – Federal Court proceedings – application to adjourn or stay proceedings until outcome of Federal Court matter – costs potentially ‘thrown away’ – prejudice to applicant – whether risk of further bullying when applicant no longer at work – no prejudice to applicant if he is reinstated in the future – prejudice lies with the four named individual respondents – lengthy and indeterminate delay – costs not properly quantified – no guarantee of a costs order – no risk of further bullying – no reasonable prospects of success – application dismissed.

BACKGROUND

[1] On 21 May 2017, Mr Joseph Salama (‘Mr Salama’ or the ‘applicant’), a Transport Officer employed by Sydney Trains (‘Sydney Trains’ or the ‘respondent’), filed an application which sought orders from the Fair Work Commission (the ‘Commission’) to stop bullying, pursuant to s 789FC of the Fair Work Act 2009 (the ‘Act’). The application named four management persons, who the applicant alleged had harassed and bullied him while he was carrying out his duties as a Union delegate and Health and Safety Representative. It was said that this harassment included threats of disciplinary action in relation to alleged false allegations made against him.

[2] In accordance with the Commission’s usual protocols, I convened a conference of the parties on 15 July 2017. At the conference, the applicant appeared with Mr Skundric, a fellow Union delegate and Ms A Sharp, Solicitor, Bartier Perry, was granted permission to appear for Sydney Trains and the named respondents, pursuant to s 596 of the Act. No agreement was reached during the conference as to the substance of the bullying claims and the relief sought by Mr Salama. On 21 June 2017, the Commission issued directions for a three day hearing of the substantive application from 25 to 27 September 2017. However, by application (the ‘strike out application’), dated 5 July 2017, Sydney Trains, sought orders dismissing the substantive application, pursuant to s 587 of the Act and consequent orders for costs, pursuant to s 611 of the Act. As a result, I suspended my earlier directions and issued further directions for the determination of the ‘strike out’ application and deferred any costs application until the primary application had been determined.

[3] However, the disciplinary processes referred to above continued. On 24 July 2017, the applicant was issued with a ‘show cause’ letter giving notice that Sydney Trains was considering terminating his employment due to his failure to improve his behaviour and conduct. On 1 August 2017, the applicant filed a s 372 General Protections application in relation to the ‘show cause’ letter (Matter C2017/4221). Then, as a result of the applicant’s dismissal on 14 August 2017, he filed a s 365 General Protections application on 23 August 2017 (Matter C2017/4667). On 20 September 2017, the applicant’s Solicitor, Mr M Hameed emailed the Commission in the following terms:

We refer to your letter dated 12 September 2017 addressed to the Solicitor for Sydney Trains in respect of Case No AB2017/280 (Anti-Bullying Application) (Joseph Salama v. Sydney Trains and ors.)

We note that the following has occurred:

1. The Applicant was reprimanded for inter alia filing an application against Sydney Trains seeking stop bullying orders by letter dated 24 July 2017;

2. The Applicant lodged an application for general protections on 1 August 2017;

3. On 14 August 2017 Mr. Salama was terminated from service.

4. On 23 August 2017 Mr. Salama lodged an application for unlawful dismissal against Sydney Trains.

In view of the authority of Atkinson v Killarney Properties Pty Ltd [2015] FWCFB 6503 at [35], it is contended that termination does render the proceedings nugatory. It is submitted that the tribunal has discretion to award costs to the Applicant in terms of Sec 400A of the Fair Work Act read with Section 611 of the same.

We note that it is our intention to seek orders pursuant to costs as against the Respondent, for the conduct of these proceedings, which may be determinable on the finalisation of proceedings. This may have complexity in relation to the dockets of the Tribunal in use.

We respectfully seek that this matter either,

1. Be listed on 4 October 2017 before the Conciliator, for orders in the proceedings.;

2. Be provided an opportunity to put on submissions for a stay until determination of proceedings in the matters of Cases No. C2017/4221 (Unlawful Dismissal) and C2017/4667 (General Protection) before Senior Deputy President Hamberger;

3. Listed on a date after 4 October 2017 for further orders.

[4] The s 365 application was listed for conference by telephone on 4 October 2017 before a Fair Work Commission Conciliator. The conference was unsuccessful, and subsequently a s 368 certificate of unsuccessful conciliation was issued to the parties on 26 October 2017. The applicant then commenced proceedings in the Federal Court of Australia on 9 November 2017, in which he seeks various orders, including reinstatement (NSDA1977/2017).

[5] On 9 November 2017, I had cause to email the parties as follows:

Deputy President Sams seeks an update from the parties in respect to their intentions in this matter. More specifically, His Honour requires the applicant to advise Chambers whether he seeks to press a costs application against the respondent. His Honour also asks the respondent to advise whether it still seeks to press its application to dismiss the matter, pursuant to s 587 of the Fair Work Act 2009 (the ‘Act’). If it does, His Honour is willing to provide the parties with an opportunity to file submissions in relation to the effect that the applicant’s dismissal may bear upon it. Please advise Chambers whether either party wishes to file any submissions in this respect.

His Honour is also aware that the applicant filed a separate s 365 application, in which a certificate was issued under s 368 of the Act, 14 days ago. The Deputy President would like to know whether the applicant has filed a general protections application in the Federal Court of Australia or the Federal Circuit Court of Australia and, if so, what course of action is proposed in respect to the matters referred to above.

[6] Ms Sharp, for Sydney Trains responded as follows on 17 November 2017:

Email from the Applicant’s lawyer

We note that the Applicant’s lawyer:

1. states “In view of the authority of Atkinson v Killarney Properties Pty Ltd [2015] FWCFB 6503 at [35], it is contended that termination does render the proceedings nugatory”. We assume that the word “not” has been inadvertently omitted.

2. seeks a stay of the instant proceedings (AB 2017/280) (Application).

3. refers to the discretion of the Fair Work Commission to award costs.

Respondent’s position

We are instructed that:

1. the Respondent submits that the decision relied upon by the Applicant does not operate as a bar to the Fair Work Commission dismissing the Application on the ground that there is no ongoing risk of bullying: section 789FF(b)(ii) of the Fair Work Act 2009 (Act)

2. the Respondent seeks a period of 21 days to put on written submissions in relation to this ground of dismissal to supplement (in the alternative) the grounds set out in the application to dismiss dated 5 July 2017 as supported by the written submissions dated 27 July 2017

3. the Respondent opposes a stay of the Application

4. the Respondent opposes any order for costs in favour of the Applicant

[7] On 28 November 2017, Mr Hameed advised the Commission as follows:

In respect of the direction of Hon. Deputy Commissioner to inform the Commission on the stance of the Applicant in respect of pursuing costs, we have been instructed by our client that he will be pursuing a costs application against the Respondent.

We respectfully advert [sic] your attention to the issuance of the certificate issued in terms of s 368 of the Fair Work Act, in respect of the Applicant’s related s.365 application (C2017/4667). Pursuant to such certificate, the Applicant has at present lodged an application to the Federal Court. (Case No: NSD1977/2017 - JOSEPH SALAMA v SYDNEY TRAINS T/AS SYDNEY TRAINS & ANOR). The relief sought in the Federal Court includes reinstatement of service. Should the Hon. Deputy Commissioner require any documentation in regard to the Federal Court proceedings, the Applicant would readily furnish the same.

We respectfully submit that the Applicant may well be reinstated in service should an order to such effect be made by the Federal Court. The Applicant therefore respectfully submits that it would be appropriate for the proceedings in the said s 372 application to be stayed, pending the Hearing and determination of the Federal Court Application.

Further, in respect of the matter of costs, we note that given the dismissal of the applicant, we would contend that if a determination ultimately made in favour of the Applicant, that costs may be open to the Commission in these proceedings, or if the matter eventuates to reinstatement, that the merits of this application ought to be considered by the Commission.

Should the Hon. Commissioner require further submissions on the proposed staying of proceedings, the Applicant would be grateful for an opportunity to do so.

[8] To complete the background to this matter, I record that on 23 May 2016, the applicant had filed a dispute against Sydney Trains, pursuant to s 739 of the Act (C2016/1296), in which he raised matters going to his eligibility to ‘act up’ in a higher position in circumstances where he had concurrent and outstanding performance issues. That dispute was ultimately discontinued after conferences chaired by the Commission.

[9] Given the aforementioned circumstances, the Commission revisited and amended its earlier directions in respect to Sydney Trains’ amended ‘strike out’ application and listed this application for hearing on 14 February 2018. At the hearing, Ms E Raper of Counsel with Ms A Sharp, Solicitor appeared for Sydney Trains and Mr D O’Sullivan of Counsel with Mr M Hameed Solicitor, Vassili Barristers and Solicitors,appeared for the applicant. Permission was granted for both parties to be legally represented, pursuant to s 596 of the Act.

Orders sought by Sydney Trains

[10] Sydney Train’s amended ‘strike out’ application seeks orders dismissing the applicant’s Anti-Bullying proceedings, specifically against the four named respondents, as the proceedings are vexatious (s 587(1)(b)) and/or have no reasonable prospects of success (s 587(1)(c) of the Act) and orders for costs as the application was made vexatiously and/or without reasonable cause (s 611(2)(a)) and/or has no reasonable prospects of success (s 611(2)(b)). Further, or in the alternative, in Ground 6, Sydney Trains and the four named respondents seek the following orders:

(a) That the AB Proceedings be dismissed under section 587(1)(c) of the FW Act on the ground that the AB Proceedings have no reasonable prospects of success because:

(i) the worker is not at risk of continued bullying for the purposes of section 789FF(1)(b)(ii) of the FW Act; and

(ii) as a consequence, the Fair Work Commission has no jurisdiction to make an order under section 789FF(1) of the FW Act;

(b) an order for costs on the grounds outlined above.

SUBMISSIONS

For Sydney Trains

[11] In oral submissions, Ms Raper focused on the circumstances which overtook Sydney Trains’ earlier ‘strike out’ application (5 July 2017), namely, the termination of the applicant’s employment on 14 August 2017. In these circumstances, the applicant cannot satisfy the Commission he is at risk of future bullying, because has he is no longer employed. In the result, his Anti-Bullying application is doomed to fail. Ms Raper further submitted that the applicant’s application for a stay or adjournment of the proceedings is unwarranted and should be refused.

[12] Ms Raper set out the relevant chronology in support of these contentions. On 18 May 2017, the applicant received a letter from Sydney Trains requiring him to attend a performance/conduct improvement plan meeting. The purpose of such a plan is to develop, in consultation with the employee, a plan for improving their performance after discussion about their conduct. Three days later, the applicant lodged his Anti-Bullying application which sought an order be made by the Commission to stop any person within the Fair Compliance Unit (of Sydney Trains) ‘from sending me letters or emails with threats of disciplinary action while performing his duties as a Union delegate or HSR’. He added this curious threat:

‘Should this continue I believe that individual financial penalties should also apply due to the seriousness of this matter.’

[13] On 24 July 2017, Sydney Trains sent a further letter to the applicant expressing ongoing concerns with his performance and requesting him to attend a meeting. In that letter, he was put on notice that consideration was being given to terminating his employment. On 14 August 2017, when the applicant finally attended a performance meeting, his employment was terminated later that day.

[14] Ms Raper said that despite Sydney Trains’ Solicitors inviting the applicant to discontinue his Anti-Bullying application, given he could not be at risk of being bullied, the applicant had declined to do so. Ms Raper emphasised the architecture of the relevant statutory provisions as providing a power to the Commission to make orders whilst the employee remains at work. The Commission’s jurisdiction is protective, rather than punitive, and is intended to ensure such applications are dealt with promptly. Ms Raper submitted that even though the Commission’s powers under s 587(1) are discretionary, and not limited by the matters set out in the section, there remains no arguable case which could successfully be pursued by the applicant. In addition, by making the orders sought by Sydney Trains, the Commission will ensure the efficient administration of justice.

[15] Ms Raper put that it seems the applicant does not take issue with the basis of Sydney Trains’ application that his Anti-Bullying application could be dismissed; but rather, by his application for a stay or adjournment, he is simply saying ‘not yet’. Ms Raper acknowledged that there may be circumstances where the Commission would not dismiss an Anti-Bullying application, but this case is not one of them.

[16] In respect to the applicant’s application for a stay or adjournment, Ms Raper said the Commission would not so order because:

(a) the Commission is required to perform its functions in a manner which is ‘quick, informal and avoids unnecessary technicalities’ (s 577(b));

(b) the applicant seeks a stay of an indefinite duration where he has not placed before the Commission any evidence as to the likely time period in which a stay will be granted;

(c) a respondent to Anti-Bullying proceedings has a right for the matter to prosecuted without delay, consistent with the clear legislative intent;

(d) there is little to no prospect that the applicant will be reinstated; and

(e)if the applicant is reinstated;

(i) the costs to him to commence new proceedings are low;

(ii) reinstatement order would not take effect until late 2019, by which time he would likely not report to any of the individual respondents; and

(f) Sydney Trains will necessarily be prejudiced by delay (particularly of an indefinite duration) including by reason of the delay heightening the uncertainty and anxiety for the individual respondents.

[17] Ms Raper emphasised that the Commission’s objectives includes performing its functions in a manner which is quick, informal and avoids unnecessary technicality. In this area of the Commission’s jurisdiction, the streamlined process is even greater, so as to ensure employees are protected at work and managerial prerogative is not stultified. In respect to stay applications generally, Ms Raper said the starting point is there is something which is required to be preserved. In this case, no such issue arises as distinct to say, an unfair dismissal application which might be stayed where criminal proceedings are on foot. If, in the unlikely event the applicant is reinstated in two or three years time, and he is of the view the premise of his Anti-Bullying claim remains, he can refile a fresh application, even using this application, should the circumstances be the same.

[18] Ms Raper further submitted that even where there is something to preserve or protect by a stay, the Commission would not do so indefinitely. The Commission would be entitled to know when other proceedings are likely to be heard and be made aware of the likely merits of those proceedings; namely, the likelihood of reinstatement. There is no issue of this kind here.

[19] Ms Raper rejected the applicant’s claim of being burdened with further costs in refiling his case – say in two years time. There is a nominal filing fee and he could simply rely on his existing materials, updated with any contemporaneous evidence. In this case, where four persons are named respondents it is impossible to speculate what their relationship with the applicant might be in two years, or if they will be in the same area as the applicant, or even remain employed by Sydney Trains. There would be a prejudice to them by reasons of such a delay.

[20] Ms Raper did not refer to the other bases of Sydney Trains’ case, other than relying on them in the event the Commission is not persuaded to dismiss the application on the primary grounds recited above.

For the applicant

[21] Mr O’Sullivan relied on his written submissions and a statement filed by the applicant. As this statement largely sets out the chronology of events, and replicates many of the documents filed by Sydney Trains, it is not particularly controversial. Understandably, Ms Raper did not seek to cross examine Mr Salama on it.

[22] Mr O’Sullivan submitted that there is no general rule that s 789FC Anti-Bullying applications be dismissed when the employee is no longer employed. Each case needs to be considered in light of its own facts and circumstances; see: Atkinson v Killarney Properties Pty Ltd & Palm[2015] FWCFB 6503 and Application by Willis [2016] FWC 716 (‘Willis’). It was said that in Willis the relevant considerations were the efficient administration of justice and any prejudice to the applicant, if a stay was not granted.

[23] Mr O’Sullivan submitted that these proceedings were commenced eight months ago and the delay in their determination was occasioned by the deliberate actions of the respondents. Further, the applicant will be prejudiced if the proceedings are dismissed, as he has incurred significant costs for issues which have not yet been determined. The respondents’ submission as to the timing of any order for reinstatement by the Federal Court, is without basis. Mr O’Sullivan opined that the context of the applicant’s ‘show cause’ letter and letter of termination provide a reasonable basis to conclude he will ultimately be reinstated. Lastly, the applicant opposed any order for costs and would wish to be further heard, if such an application is pressed.

[24] In oral submissions,Mr O’Sullivan rejected the proposition that if the applicant is ultimately reinstated, he could bring a fresh application, without any prejudice to him. The distinction to Willis here is that there has been no ventilation of the anti-bullying issues, just a ‘strike out’ application by Sydney Trains.

[25] Mr O’Sullivan referred to the timing of events and the ‘show cause’ letter (of 24 July 2017) issued to the applicant which arose after he lodged the Anti Bullying application (21 May 2017). In fact, the show cause letter states at point 2:

2. On 21 May 2017, you filed an application for an order to Stop Bullying Order with the Fair Work Commission (Application). You are well within your rights to file legitimate applications with the Fair Work Commission and other bodies. It is not acceptable to file vindictive and/or unreasonable applications which impact on the welfare of Sydney Trains' employees. I have carefully reviewed your Application and it is my view that:

(a) the Application was filed in direct retaliation to the letter of 18 May 2017 and does not disclose any legitimate allegation of bullying;

(b) the Application was filed to avoid reasonable management action;

(c) so far as concerns Amba Francisco, your allegations are without foundation, are an attempt to embarrass or harass her, and an attempt to avoid legitimate performance action;

(d) so far as concerns Tony New, your allegations relate to an alleged incident in November 2016 which was considered and closed by the Workplace Conduct and Investigation Unit at that time, your allegations are without foundation, are an attempt to embarrass or harass him, and an attempt to avoid legitimate performance action;

(e) so far as concerns Charlie Keech, your allegations are completely without foundation, relate to a trivial incident (submitting a reimbursement form to the value of $28) where your manager informed you that you were wrong in your assertion about the operation of the policy; and was an attempt to embarrass or harass him;

(f) so far as concerns Kirsty Sweeting, your allegations relate to an incident in November 2016 which was concluded by the Workplace Conduct and Investigation Unit at the time, your allegations were of the utmost triviality, you have not had any dealings with her since November 2016, and are an attempt to embarrass or harass her.

In light of this allegation, Mr O’Sullivan submitted that prima facie the applicant’s Federal Court proceedings have reasonable prospects of success.

[26] In circumstances where the applicant is reinstated then the costs he has expended on defending the ‘strike out’ application (to date approximately $18,000) will be ‘thrown away’ in full, or at least ‘in part’. Moreover, Sydney Trains may at that later point reagitate another ‘strike out’ application, based on its Grounds one to five in this matter.

[27] Mr O’Sullivan submitted there is no basis for a submission that the applicant’s s 789FC Anti-Bullying proceedings may take some years to be determined. This ignores the possibility of a settlement of the Federal Court matter which may relate to any stay of these proceedings. Speculating about whether the named respondents will still be employed, or have future interaction with the applicant, is unhelpful and should be rejected.

[28] In fairness to Mr O’Sullivan I had this exchange with him as to any prejudice to the named respondents:

THE DEPUTY PRESIDENT:  I want to raise this issue with you because I don't want it necessarily to be said you are taken by surprise in respect of this, but it had occurred to me that there are four named employees as respondents to the anti-bullying application.  These are serious allegations.

MR O'SULLIVAN:  Yes, your Honour.

THE DEPUTY PRESIDENT:  Putting aside those allegations hanging over these persons, let's say for months because I think that's a realistic assessment.

MR O'SULLIVAN:  Yes, the applicant would concede that.

THE DEPUTY PRESIDENT:  If any of these employees sought to secure other employment and were asked by the employer, as is often the case, "Are you involved in any other proceedings relating to your past employment?" and they say, "Oh, yes", reluctantly, "I'm a respondent to a bullying application which has not been determined, it's been stayed", you don't see that as prejudicial to those persons?

MR O'SULLIVAN:  Your Honour, in circumstances where that question may be asked, and I would hazard - I will withdraw that and put it this way, your Honour.  Firstly, I am not aware of employers, and I've been practising in the area of industrial employment both involving advice and representation of both employers and employees for the best part of 30 years and it's not a question that I am aware that is asked of prospective employees.  What is asked of - - -

THE DEPUTY PRESIDENT:  And if they are involved in workers' compensation matters.

MR O'SULLIVAN:  Yes.

THE DEPUTY PRESIDENT:  And bearing in mind the environment we are in now, I can assure you that people are asked if they have proceedings against their former employer.

MR O'SULLIVAN:  Yes, your Honour, let's imagine that there was such a case that someone had been asked.

THE DEPUTY PRESIDENT:  Yes.

MR O'SULLIVAN:  The response, no doubt, would be, your Honour, ‘It was an allegation which I deny and there's been no findings and no evidence.’

THE DEPUTY PRESIDENT:  ‘But it's still hanging around my head.’

MR O'SULLIVAN:  Yes, your Honour.  Can I say this:  if that was a real concern, a major concern, and is something that should be taken into consideration by the Commission, why is it not that we have evidence before this Commission?  The applicant has gone to the proper preparation of this case by putting on evidence that you can consider, is able to be cross-examined on with respect to that, your Honour.  You don't have that.  One merely needs to speculate that that's the case, and the fact that that evidence is not on, an inference can be drawn that if they were to put on that evidence, it would not assist their case.  That's what we would say to that.

[29] Lastly, I asked Mr O’Sullivan if he drew any distinction between his application for a stay or an indefinite adjournment; see: the principles set out in Kellow-Falkiner Motors v Edgehill Print S4126. He agreed there was a difference and proposed relisting this matter after the Federal Court mediation (listed for May 2018). Mr O’Sullivan could give no further advice as to when the Federal Court matter might ultimately be listed for hearing, as it would depend entirely on the procedures adopted by the Judge allocated the matter.

In reply

[30] Ms Raper submitted that Sydney Trains relied on the decision in Willis on two bases. Firstly, an applicant must prove that there is a real risk of being bullied in the future - not just a conceptual or hypothetical risk and secondly, that an adjournment for a lengthy or indeterminate period is not conducive to the efficient administration of justice. The only apparent certainty here is a mediation in the Federal Court in May with a timetable of further proceedings all unknown and speculative.

[31] Ms Raper said that merely asserting a prima facie case based on exercising a workplace right requires an appreciation of the likelihood of reinstatement in the circumstances of this case. She submitted that Mr Salama’s reinstatement was highly unlikely.

[32] As to the prejudice concerning the applicant’s costs to date, the Commission has no evidence as to the quantum of costs that make up the approximate figure of $18,000. Where there has been an Anti-Bullying application and two General Protections matters, all based around the same issues, and a three page submission in reply to the ‘strike out’ application, it is difficult to see how $18,000 has been spent. In addition, costs do not follow the event under the Act and there is a high hurdle to overcome in which success is highly speculative. In any event, any future Anti-Bullying application can use the resources the applicant had already garnered in this matter to date. Finally, Ms Raper said that if the Commission is minded to dismiss this application on the respondent’s sixth ground, then the only costs application must be in respect to the second ‘strike out’ application and not the first.

CONSIDERATION

[33] The Commission’s power to dismiss an application are set out generally at s 587 of the Act. I set out the section below:

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.

[34] For the reasons which I will shortly explain, I have decided to accept Ms Raper’s submission that this matter be decided in accordance within Ground 6 of Sydney Trains amended ‘strike out’ application of 5 July 2017.

[35] The power of the Commission to dismiss a substantive application should only be exercised cautiously; see: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at para [8]. This is so because the exercise of such a power results in the extinguishment of a party’s application, which has been made in order to seek some form of relief, from a beneficial statutory provision. In other words, the application is dismissed before an applicant has had his/her ‘day in court’. That said, s 587 of the Act does not limit the grounds on which the Commission, of its own motion, may dismiss an application.

[36] In Ryan v Council of the City of Sydney [2018] NSWSC 265 (the Supreme Court of New South Wales, Garling J), although in a different statutory context, said at [34] to [37]:

‘34. Under r 13.4 of the UCPR, the Court is entitled to make an order for summary dismissal where it is satisfied that:

(a) the proceedings are vexatious or frivolous; or

(b) no reasonable cause of action is disclosed; or

(c) proceedings are an abuse of the process of the Court.

35. Making such an order involves the exercise of a discretion. It is well settled that in exercising any power given to the Court under the UCPR, the Court is obliged to further the overriding purpose which is set out in s 56 of the Civil Procedure Act 2005. That overriding purpose obliges the Court to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

36. In addition to the general overriding purpose which must guide my discretion, specific principles apply to summary dismissal.

27. The test to be applied by a court when considering whether to summarily dismiss proceedings has been clearly established by the High Court. The following principles will guide the Court’s judgment:

(1) every litigant, prima facie, has the right to have all matters of law and fact decided at a hearing. The Court should not exercise its power to deprive a litigant of that right unless the plaintiff's claim is so obviously untenable that it cannot possibly succeed: Burton v Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76 at 92, per O'Connor J;

(2) before summary disposal can be justified, the case must be a very clear one, in which there is no real question of fact or law to be determined at a final hearing: Dey v Victorian Railway Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 91, per Dixon J;

(3) the applicable test when considering summary dismissal of an action has been variously expressed as “hopeless”, “so obviously untenable that it cannot possibly succeed”, “manifestly groundless”, or “so manifestly faulty that it does not admit of argument”: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 128-9;

(4) the exercise of power to summarily terminate proceedings requires the Court to have a high degree of certainty about the ultimate outcome of the proceedings if it were allowed to go to trial in the ordinary way, and must be approached with great caution: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 at [57] per Gaudron, McHugh, Gummow and Hayne JJ; Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 at [24], per French CJ and Gummow J.’

[37] Notwithstanding the above general considerations, it seems to me that the power to dismiss an Anti-Bullying application must be viewed through the prism of the statutory provisions underpinning the Commission’s powers to order relief under its Anti-Bullying jurisdiction. That being so, it is necessary to set out the relevant statutory provisions set out below:

[38] Section 789FC of the Act provides as follows:

(1) A worker who reasonably believes that he or she has been bullied at work may apply to the FWC for an order under section 789FF.

(2)  For the purposes of this Part, worker has the same meaning as in the Work Health and Safety Act 2011 , but does not include a member of the Defence Force.

Note: Broadly, for the purposes of the Work Health and Safety Act 2011 , 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.

(3)  The application must be accompanied by any fee prescribed by the regulations.

(4)  The regulations may prescribe:

(a)  a fee for making an application to the FWC under this section; and

(b)  a method for indexing the fee; and

(c)  the circumstances in which all or part of the fee may be waived or refunded.

[39] Section 789FD of the Act defines bullying conduct as follows:

‘When is a worker bullied at work?

(1) A worker is bullied at work if:

(a) while the worker is at work in a constitutionally-covered business:

(i) an individual; or

(ii) a group of individuals;

(a) repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and

(b) that behaviour creates a risk to health and safety.

(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.

(3) If a person conducts a business or undertaking (within the meaning of the Work Health and Safety Act 2011) and either:

(a) the person is:

(i) a constitutional

corporation; or

(ii) the Commonwealth; or

(iii) a Commonwealth authority; or

(iv) a body corporate incorporated in a Territory; or

(b) the business or undertaking is conducted principally in a Territory or Commonwealth place;

then the business or undertaking is a constitutionally-covered business.’

[40] Section 789FE of the Act provides as follows:

‘FWC to deal with applications promptly

(1) The FWC must start to deal with an application under section 789FC within 14 days after the application is made.

Note: For example, the FWC may start to inform itself of the matter under section 590, it may decide to conduct a conference under section 592, or it may decide to hold a hearing under section 593.

(2) However, the FWC may dismiss an application under section 789FC if the FWC considers that the application might involve matters that relate to:

(a)  Australia's defence; or

(b)  Australia's national security; or

(c) an existing or future covert operation (within the meaning of section 12E of the Work Health and Safety Act 2011 ) of the Australian Federal Police; or

(d) an existing or future international operation (within the meaning of section 12E of the Work Health and Safety Act 2011 ) of the Australian Federal Police.

Note: For another power of the FWC to dismiss applications under section 789FC, see section 587.’

[41] The capacity of the Commission to make orders is set out in s 789FF of the FW Act 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.’ [underlining added]

[42] It follows that the Commission may issue orders to stop bullying, only in circumstances where there is a risk that a worker who has been bullied at work, is at future risk that they will be bullied at work. As Mr Salama was dismissed from his employment there is a line of authority which establishes that in these circumstances, the employee cannot meet the requirements of s 789FF(b)(ii) such that the Commission’s jurisdiction might be enlivened.

[43] In Shaw v Australia and New Zealand Banking Group Limited[2014] FWC 3408, Gostencnik DP said at [15] to [17]:

‘[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 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. I see no reason in the circumstances why I should not exercise my discretion to dismiss Mr Shaw’s application given my finding and I do so. An order dismissing Mr Shaw’s application has been made separately in PR550413. I would observe that, if as a consequence of Mr Shaw’s general protections application or any other remedy that he seeks, he is reinstated to his former position or another position with ANZ and at that point he has concerns about a risk of being bullied at work, it seems to me, and the ANZ seem to accept that he will be at liberty to make a fresh application at that time. That he has made this application and that it has been dismissed will not operate as a bar to any future application if the jurisdictional facts can be established in relation to that application.’

[44] In Atkinson v Killarney Properties Pty Ltd & Palm[2015] FWCFB 6503, the Full Bench of the Commission said at [32], [33] and [35]:

‘[32] We are not persuaded the decisions in Shaw and Obatoki are plainly wrong.

[33] Both Shaw and Obatoki concerned the FWC dismissing a s.789FC application under s.587(1)(c) of the FW Act. In each case, the FWC formed the view that the s.789FC application had no reasonable prospects of success as the applicant was no longer “at work” and, therefore, a pre-requisite for the making of a s.789FF order did not exist. Having formed that view, the FWC then went on to exercise its discretion under s.587(1)(c) of the FW Act to dismiss the s.789FC application.

[35] In this decision, we are not suggesting that it will always be appropriate for the FWC to dismiss a s.789FC application where an employee is dismissed from their employment. Depending on the circumstances in each case there may be a number of relevant considerations, including the prospect of reinstatement through other proceedings, which could warrant the FWC dealing with a s.789FC application notwithstanding the dismissal of the employee.’

[45] Asboth Counsel relied on Willis, it is appropriate to refer to the following lengthy passage from the decision at [15] to [22]:

‘[15] However, as s.789FF(1)(b) makes clear, I must also be satisfied that there is a risk that the Applicant will continue to be bullied at work by that individual or group of individuals. Without satisfaction of the existence of a risk of continued bullying at work of the applicant by the individual or group there is an absence of power to make an order.

[16] As the Applicant has been dismissed and is no longer employed by Capital Radiology it cannot now be concluded that there is a risk that the Applicant will continue to be bullied at work by the individual or group. There is no real risk of that eventuality. That has been the case since 14 July 2015 and continues to be the case as at the date of this decision.

[17] The Applicant is taking steps to seek a remedy in relation to his dismissal by Capital Radiology and that may, if he succeeds, result in reinstatement at some point in the future. However, that case will not be heard by the Federal Circuit Court until September 2016 with a decision still later in time. As things presently stand (and would stand if I were to hear and determine this matter over the next few months) the prospect of the Applicant being ‘at work’ with Capital Radiology is speculative or hypothetical, as is the risk of continued bullying at work of the Applicant by the individual or group. As a matter of fact, the Applicant is not and will not be at work with Capital Radiology. There cannot therefore be a risk that the Applicant will continue to be bullied at work by an individual or group of individuals as identified in his application, because he is no longer employed by Capital Radiology and is no longer at work. That position will pertain for the foreseeable future.

[18] It necessarily follows that I do not have power to make an order to stop bullying and, as a consequence, I am satisfied that the Applicant’s application for an order under s.789FF has no reasonable prospect of success.

[19] Each case of this kind will turn on its own peculiar facts. It should not be assumed that it will always be appropriate to dismiss an application for an order under s.789FF because the worker has been dismissed. In some circumstances it may be appropriate to adjourn a proceeding instead of dismissing it or to proceed with determining the other preconditions in s.789FF before considering the question of risk of continued bullying at work.

[20] I have given consideration to both these possible courses of action but I have concluded that neither course is appropriate in the present circumstances. If I were to proceed to determine the matter, I would likely face the same question concerning risk in a few months. At that point the conclusion would be the same. The efficient administration of justice is not served by this course and resources of the parties would be unnecessarily expended.

[21] An adjournment for a period that is both lengthy and presently indeterminate is also not conducive to the efficient administration of justice. Cases of this kind should be determined with reasonable expedition. Certainly, the legislature had this in mind by mandating that the Commission start dealing with such an application within 14 days after the application is made. Moreover, in the event that the Applicant succeeds before the Federal Circuit Court and he is reinstated, he is free to make another application if he believes there is a risk of continued bullying and it seems to me, there is nothing to prevent the Applicant relying on the conduct currently alleged in this application to make good the other jurisdictional fact requirements. As such, no real prejudice is suffered by the Applicant, and there will be no material delay in dealing with a new application on that basis when compared to the delay in determining this application if it were adjourned, pending the hearing and determination of the Federal Circuit Court proceeding.

[22] I am therefore of the opinion that the application for dismissal of the Applicant’s application for an order under s.789FF should be granted. An order dismissing the Applicant’s application for an order under s.789FF is separately issued in PR576691.’ [footnotes omitted]

See also: Application by Michael, Vinay [2018] FWC 905.

[46] In my view, the decision in Willis is ‘on all fours’ with the factual circumstances of this case. Of particular resonance is that:

(a) An adjournment or stay in this case, is on any view, likely to be lengthy and indeterminate because of the pending Federal Court proceedings. Granting a stay or an adjournment in these circumstances is inconsistent with the efficient administration of justice; particularly given the clear statutory mandate that these applications are to be dealt with promptly (s 789FE);

(b) If the applicant succeeds in the Federal Court and is reinstated, he will be free to make another Anti-Bullying application if he believes he will be at risk of being bullied at work;

(c) There is nothing to prevent the applicant from relying on the current alleged bullying conduct, or any new conduct, to make ‘good the other jurisdictional prerequisites’, if he was to be reinstated.

[47] Given the above, I am satisfied there would be no real prejudice suffered by the applicant in these circumstances. In addition to these matters, I intend to address two other considerations which have figured in my determination of this ‘strike out’ application.

[48] Firstly, in my opinion, there will be real prejudice to the four named respondents if these proceedings are adjourned or stayed for some lengthy, indeterminate period. It should not be lost sight of that named individuals in Anti-Bullying applications are respondents to serious and public legal proceedings in which they are - for better or worse - labelled as alleged bullies. It usually becomes well known in the workplace that these persons are facing legal action to have them confirmed as bullies in the workplace. The epithet may stick, even if there is no substance to the allegations – as the saying goes ‘if you throw enough mud at the wall, some of it will stick’. The vast majority of alleged bullies in proceedings of this kind are mid-level supervisers, managers or team leaders who are doing no more than carrying out their supervisory duties. Usually, this is reasonable management action carried out in a reasonable manner. Invariably however, a resultant Anti-Bullying application is directly associated with an applicant’s adverse performance issue or a warning given for poor performance or behaviour. On many occasions, I have observed named respondents, who are themselves seriously and adversely impacted by being named as alleged bullies, sometimes displaying high levels of stress, anxiety and distress, even psychological damage.

[49] I hasten to add that I am in no position to make findings about whether the applicant’s bullying allegations are valid or not. No case has been run; let alone any evidence properly tested. I am simply observing that it seems to me that the prejudice in this case rests primarily on the named respondents who will have to wait for many months, without being given an opportunity to defend the bullying allegations against them, (which I note they strenuously deny). I also refer the reader to a scenario I described when I raised this matter with Mr O’Sullivan in the proceedings; see; para [28] above.

[50] Respectfully, I do not accept Mr O’Sullivan’s answer to my concern that the Commission might review the stay or adjournment application after the Federal Court mediation in May 2018 as the matter may be settled. Given the current disposition of Sydney Trains and the respondents’ trenchant rejection of the allegations by the applicant, I consider Mr O’Sullivan’s optimism to be problematic and unsatisfactory.

[51] Secondly, in addressing Mr O’Sullivan’s submission as to the prejudice to the applicant by the costs being ‘thrown away’ to date, if his application for reinstatement succeeds, three observations can be made.

1. The applicant has provided no evidence of the details of the legal costs he has expended to date, totalling around $18,000. If such an argument is to be given serious consideration the onus rests on the applicant to provide a schedule of costs. He did not do so. Mr Salama does not appear to have engaged a lawyer (Mr Hameed, Vassili Barristers and Solicitors) until sometime on or around 9 August 2017, (although no Notice of Representative Commencing to Act has been filed by Vassili Barristers and Solicitors in this application). Up to that point, the applicant appeared to be represented, or at least assisted by a fellow employee delegate, Mr Andrew Skundric.
2. For my own part, I have some reservations in accepting that this Anti-Bullying application (filed by a fellow Union delegate) and two General Protections applications, all in substance dealing with the same set of circumstances, would have incurred legal costs of around $18,000. If the Commission’s schedule of costs was applied to these legal activities, it is difficult to imagine the total of costs reaching anything like $18,000.
3. More significantly, Mr O’Sullivan’s submission seems to presume that any application for costs by his client, even if he was wholly successful, will result in a costs order being made. As the statutory underpinning of the Act (s 611(1)) involves the general principle that parties to all proceedings under the Act pay their own costs, (that is, costs ‘do not follow the event’), a presumption of success as to costs, given the limited exceptions in s 611 of the Act, is a brave presumption to make.

[52] I unreservedly accept that there is no ‘general rule’ in the Commission’s Anti-Bullying jurisdiction which requires a ‘strike out’ application to succeed where the applicant is no longer at work. However, I am satisfied that the circumstances of this case, overwhelmingly compel such an outcome.

[53] Accordingly, I order that Matter AB2017/280 be dismissed as having no reasonable prospects of success under s 587(1)(c) of the Act and in the exercise of my general discretion under s 587, which does not limit when the Commission may dismiss an application. An order to this effect will be issued simultaneously with this decision.

DEPUTY PRESIDENT

Appearances:

Ms D O’Sullivan of Counsel with Mr M Hameed Solicitor (Vassili Barristers and Solicitors).

Ms E Raper of Counsel with Ms A Sharp Solicitor (Bartier Perry).

Hearing details:

2018.

Sydney:

February 14.

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