Mr Nicholas Lawton

[2017] FWC 2054

[2017] FWC 2054

FAIR WORK COMMISSION

DECISION

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

Mr Nicholas Lawton
(AB2017/140)

COMMISSIONER HUNT SYDNEY, 11 APRIL 2017

Application for an FWC order to stop bullying.

Background

[1] An application for an order to stop bullying pursuant to s.789FC of the Fair Work Act 2009 (the Act) was made by Mr Nicholas Lawton on 14 March 2017. The application alleged bullying conduct by three named persons, those being employees of Sandbag and Bracken Ridge Action Group Inc T/A Sandbag (Sandbag).

[2] Mr Lawton was involved in a Queensland State Government funded employment and training program referred to as the “Skilling Queensland Locally for Employment Program” with Sandbag (the SQE program). Sandbag coordinated the SQE program, however did not provide training, qualifications or work placement to the students involved.

[3] The program Mr Lawton was enrolled in was for a period of 18 weeks, with the front-end of the program constituting learning in a classroom environment, outsourced to another organisation. The balance of the 18 weeks would see Mr Lawton engage in some work experience. Mr Lawton claimed that the relationship he had with Sandbag was one of an apprentice or trainee.

[4] Sandbag objected to the Fair Work Commission (Commission) determining the application on the basis that Mr Lawton was not a ‘worker’. Given very recent developments it is not necessary to consider this objection.

[5] The matter was listed for conference on 6 April 2017, however Mr Lawton failed to attend on that date.

[6] On 6 April 2017, Mr Patrick Brown, President and Board Chair of Sandbag forwarded to my Chambers communication from Sandbag to Mr Lawton terminating Mr Lawton from the SQE program with immediate effect.

[7] On 10 April 2017, my Associate wrote to Mr Lawton and informed him that as he had been terminated from the SQE program, I held a preliminary view that the Commission could not be satisfied that s.789FF(1)(b)(ii) of the Act could be met as there was no risk of Mr Lawton being bullied at work (emphasis added). Mr Lawton was invited to indicate if he wished to proceed with the application.

[8] On 10 April 2017, Mr Lawton responded that he “was bullied at work and it has an impact”. He stated that Mr Brown should “stand down as a result of his online bullying”, and further, “Comm. Hunt will need to show cause as to why unreasonable threats of murder or violence are acceptable in the workplace in order for me to not refer this to the Crime and Corruption Commission and another related but more senior one”.

[9] Mr Lawton did not dispute the fact that he had been terminated from the SQE program.

[10] It is not necessary to consider the substantive issue of whether bullying conduct occurred for the purposes of determining whether the Commission has jurisdiction to determine the application. Given that both parties were given an opportunity to make submissions and that no facts in respect of the jurisdictional question at [7] are in dispute, it is not necessary to conduct a formal hearing.

Relevant legislation

[11] Section 789FC of the Act provides:

‘789FC Application for an FWC order to stop bullying

(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.’

[12] Section 789FF(1) of the Act provides:

‘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.’

Consideration

[13] Pursuant to ss.789FF(1)(b)(i) and (ii) of the Act, for the Commission to make orders with respect to an application, it must be satisfied that the worker was bullied at work and that there is a risk that the worker will continue to be bullied at work.

[14] The leading authority on the application of s.789FF(1)(b) in analogous cases is Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank; Bianca Haines. 1 In that case Gostencnik DP held that:

‘[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.’

[15] This position was subsequently affirmed by the Full Bench in Obatoki v Mallee Track Health & Community Services and Others. 2

[16] It is not disputed that Mr Lawton is no longer enrolled by Sandbag in any program. Therefore, there is no present risk that Mr Lawton will continue to be bullied at work, noting that it is not necessary to determine if Mr Lawton was indeed, at work. Accordingly, the requirements of s.789FF(b)(ii) cannot be satisfied.

[17] Section 587(1) of the Act provides:

‘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.’

[18] In considering all of the circumstances, I am satisfied that there is no risk of Mr Lawton being bullied at work pursuant to s.789FF(1)(b)(ii) of the Act. I am also satisfied that as a result, the application has no reasonable prospects of success and it is appropriate in all of the circumstances to dismiss the application.

[19] Accordingly, the application is dismissed under s.587(1)(c) of the Act.

COMMISSIONER

 1   [2014] FWC 3408.

 2   [2015] FWCFB 1661 at [16].

Printed by authority of the Commonwealth Government Printer

<Price code A, PR591786>