Mr Ming Steven Zhao

[2018] FWC 2560

[2018] FWC 2560

FAIR WORK COMMISSION

DECISION

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

Mr Ming Steven Zhao
(AB2017/472)

COMMISSIONER JOHNS SYDNEY, 8 MAY 2018

Application for an FWC order to stop bullying.

[1] On 27 August 2017 Mr Zhao (Applicant) made an application under section 789FC of the Fair Work Act 2009 (FW Act) for an order to stop bullying.

[2] On 11 September 2017, the employer filed a Form F73 - Response from Employer/Principal to an Application for an Order to Stop Bullying (Form F73). The covering email noted that the Form F73 was filed on behalf of each of the four persons named in the application as individual respondents.

[3] The matter was listed for a conference on 22 September 2017. The employer was represented by its General Counsel of Employee Relations, Ms Joanne Ede. The conference was also attended by each of the individual respondents named in the application. At this time, the Applicant was medically unfit to return to work.

[4] Following the conference on 22 September the matter remained unresolved. The Commission directed that, once the Applicant was medically cleared to return to work, the parties must notify Chambers so that a second conference could be listed.

[5] On 2 January 2018, the Applicant emailed chambers stating that his doctor had cleared him to work one day a week. The matter was listed for a second conference, with some amendments due to availability, for 23 February 2018. Following this conference, the matter was set down for Hearing on 8 May 2018.

[6] On 23 February 2018, I issued Directions for the parties to file materials. The Applicant was due to file his materials on 30 March 2018. He did not do so. All he filed was an email on 25 March 2018 where he quoted his initial application.

[7] On 27 March 2018 the employer emailed the Commission advising that they were terminating the Applicant’s employment with immediate effect. It was requested that the matter be cancelled and the application closed.

[8] On 28 March 2018 the Commission wrote to the Applicant requesting that, in light of the termination of his employment, he file a Notice of Discontinuance in respect of his anti-bullying application.

[9] On 7 May 2018 the Commission wrote again to the parties and reiterated the request for a Notice of Discontinuance. The same day, the Respondent lodged an F1 – application to have the matter dismissed (with no order as to costs) on the basis it had no prospects of success. The Respondent contended that:

“The Respondent has not worked in the Applicant’s business for many months, and is also no longer employed by the Applicant.

Accordingly, the Respondent is no longer at risk of any behaviour that creates a risk to health and safety or any risk that he will continue to be bullied (which in any event the Applicant denied he ever was).

There are therefore no orders that the Fair Work Commission can make pursuant to section 789FF of the Fair Work Act 2009 (Cth) in the anti-bullying application made by the Respondent in AB2017/472. The application has no prospect of success.”

[10] On the same day, the Commission received:

a) an email from the Respondent:

i. stating that the Applicant currently has an open Unfair Dismissal claim listed for conciliation on 9 May 2018; and

ii. requesting the bullying application be immediately dismissed as the Applicant no longer works for the Respondent.

b) two emails from the Applicant requesting the Hearing be put on hold until his unfair dismissal matter is finalised;

c) an email from the Respondent stating that:

i. they have obtained an independent medical report from a psychiatrist stating that the Applicant will not be able to return to work either now or in the future; and

ii. that there is no factual basis for the Applicant’s bullying application be put on hold.

d) an email from the Applicant stating that he has three reports from other psychologists and psychiatrists that he is fit to work at the employer.

[11] To date the Commission has not received a Notice of Discontinuance from the Applicant.

[12] At the Hearing on 8 May 2018, Ms J Ede, General Counsel of Employee Relations represented the Respondent. The Applicant, however, was not present. My Associate called the Applicant twice to no answer, leaving one voicemail alerting him to his absence. The Hearing commenced without the Applicant present.

[13] In Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank; Bianca Haines, 1 (Shaw) Deputy President Gostencnik observed:

“[8] Section 587 of the Act provides a discretion to dismiss an application if, inter alia, the application has no reasonable prospect of success. Let me first deal with the meaning and application of the phrase, “has no reasonable prospect of success”. Without traversing in any great detail the authorities that have considered the proper application and meaning of the phrase, “no reasonable prospect of success,” it is sufficient for me for present purposes to make the following observations. A conclusion that an application has no reasonable prospect of success should only be reached with extreme caution and in circumstances, for example, where an application is manifestly untenable or is groundless or is so lacking in merit or substance as to be not reasonably arguable. But these examples do not provide an exhaustive description of when a particular application has no reasonable prospect of success.

[9] Secondly, I am mindful of that which the majority (Hayne, Crennan, Kiefel and Bell JJ) of the High Court of Australia in Spencer v The Commonwealth of Australia 2 had to say when their Honours considered the meaning of the phrase, “no reasonable prospect,” in the context of s. 31A of the Federal Court of Australia Act 1976. In that case their Honours said the following:

In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described with or without the additional intensifying epitaphs like “clearly”, “manifestly” or “obviously” as “frivolous”,” untenable”, “groundless” or “faulty” but none of these expressions alone or in combination should be understood as providing a sufficient chart of the metes and bounds of the powers given by section 31A nor can the content of the word “reasonable” in the phrase, “no reasonable prospect” be sufficiently, let alone completely illuminated by drawing some contrast with what would be a frivolous, untenable, groundless or faulty claim.

Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under section 31A if, and only if, satisfied that there is no reasonable prospect of success. Of course it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly but the elucidation of what amounts to no reasonable prospect can best proceed in the same way as content has been given through a succession of decided cases to other generally expressed statutory phrases such as “just and equitable” when it is used to identify the ground for winding up of a company. At this point in the development of the understanding of the expression and its application, it is sufficient but important to emphasise that the evident legislative power as revealed by the text of the provision would be defeated if its application is read as confined to cases of a kind which fell within the earlier different procedural regimes. 3

[10] In Spencer the High Court was saying that one should not make the mistake of only concluding that a proceeding has no reasonable prospect of success if it is frivolous, untenable, groundless or faulty and that full expression should be given to that phrase. It seems to me that the observations in Spencer are apt to apply to the construction and application of the phrase “has no reasonable prospect of success” as it appears in s. 587 of the Act.

[11] Thirdly, I would also observe that the answer to the question whether a particular application has no reasonable prospect of success in the context of s. 587 may differ depending on the time at which the question is asked. This, it seems to me, is evident from the word “has”. So it is that an application at its inception may have some reasonable prospect of success but, as circumstances change during the course of dealing with an application, those changed circumstances might have the result that an application which once had some reasonable prospect of success no longer has a reasonable prospect of success.

[12] In this case the relevant circumstance that has changed since Mr Shaw made his application on 11 April 2014 is that he has been dismissed from his employment by the ANZ. The employment has ended. So far as is relevant for present purposes the question that must be answered is, having regard for the statutory provisions contained in Part 6-4B of Chapter 6 of the Act, the provisions under which Mr Shaw’s application is made, and taking into account the facts as presently known, those that are not disputed, and taking Mr Shaw’s case at its highest, does Mr Shaw’s application have a reasonable prospect of success? Put simply, is there some reasonable prospect that Mr Shaw will be able to persuade me to make an order under s. 789FF? I now turn to consider that question.

[13] Section 789FC of the Act provides that a worker who reasonably believes that he or she has been bullied at work may apply to the Commission for an order under s. 789FF. Section 789FB sets out that which is meant by the phrase “bullied at work”. That a person who has made an application has been bullied at work by an individual or a group of individuals is one of the matters about which I must be satisfied before considering whether to exercise my discretion to make an order to stop bullying under s. 789FF.

[14] For the purposes of ANZ’s application to dismiss I am prepared to assume without deciding that Mr Shaw will be able to satisfy me at the hearing of his application that he was bullied at work by an individual or group of individuals. I am also prepared to assume without deciding that ANZ will not be able to satisfy me that the actions about which Mr Shaw complains were reasonable management actions, carried out in a reasonable manner. But those matters are not the only matters about which I must be satisfied.

[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.”

[14] The Respondent also referred me to the decision in KM, 4 in particular, paragraphs:

“[61] As would be clear from the authorities outlined earlier in this decision, in the context of a finding that there is no foreseeable relevant future risk within the meaning of s.789FF of the FW Act, and accordingly, no reasonable prospects of success, a discretion arises whether to dismiss an application.

[62] In this matter, there would not appear to be any foreseeable basis which might lead to the applicant being in the workplace as a worker. On that basis, it is not appropriate in this case to attempt to further hear the application as it is not feasible that any order could be made. It is also not appropriate for the Commission to attempt to make some sort of declaratory judgement about the events leading to the application.”

[15] Like in Shaw’s case, the relevant circumstance that has changed since the Applicant made his application on 27 August 2017 is that he has been dismissed from his employment with the employer. The employment relationship has ended.

[16] Even if the Commission is satisfied that the Applicant reasonably believed he was bullied at work within the meaning of section 789FD of the FW Act, the Commission can only make an order to stop the bullying if it is satisfied there is a risk that the Applicant will continue to be bullied at work. 5

[17] It is common ground that the employment relationship has ended. As such there cannot presently be a risk of the Applicant being bullied at work by the individuals identified in his application because he is no longer at work.

[18] It necessarily follows that the Commission, as presently constituted, does not presently have the power to make an order to stop bullying. The Commission is satisfied the Applicant’s application has no reasonable prospect of success. Consequently, the Commission exercises its discretion under section 587 of the FW Act to dismiss the Applicant’s application for want of jurisdiction.

[19] However, I am conscious that in the remote event 6 that the Applicant is reinstated into his employment, he could press his anti-bullying application.

[20] Concurrently with this decision an Order will be issued that

a) the application be dismissed (with no order as to costs); and

b) the Applicant has liberty to apply under s.603 of the FW Act to have this Decision and the Order revoked if he is reinstated.

COMMISSIONER

Appearances:

Ms J Ede for the Respondent

Hearing details:

Sydney

9:30am

8 May 2018

Printed by authority of the Commonwealth Government Printer

<PR606883>

 1   [2014] FWC 3408.

 2 (2010) 241 CLR 181.

 3   Ibid at [59] - [60].

 4   [2016] FWC 2088.

 5   Section 789FF(1)(b)(ii).

 6   Although reinstatement is supposedly primary remedy when a dismissal is found to be unfair, in the last financial year it was only awarded in 8% of arbitrated unfair dismissal matters.