Mr Perry Stork v ABN Group (VIC) Pty Ltd T/A Boutique Homes Homebuyers Centre Victoria
[2023] FWC 1269
•2 JUNE 2023
| [2023] FWC 1269 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Mr Perry Stork
v
ABN Group (VIC) Pty Ltd T/A Boutique Homes Homebuyers Centre Victoria and Others
(SO2022/541)
| COMMISSIONER YILMAZ | MELBOURNE, 2 JUNE 2023 |
Application for an FWC order to stop bullying – Applicant dismissed – no risk of continued bullying at work – application for an order to stop bullying dismissed on the basis of no reasonable prospect of success.
On 2 November 2022, the Applicant, Mr Perry Stork lodged an application (the Application) with the Fair Work Commission (Commission) pursuant to s.789FC of the Fair Work Act 2009 (the Act) for an Order to Stop Bullying. The Application named ABN Group (VIC) Pty Ltd Trading AS Boutique Homes Homebuyers Centre Victoria (ABN Group) and others[1] (Persons Named).
The matter was the subject of a conference before me on 19 December 2022 to explore any opportunities for the parties to reach an agreed resolution to the matters raised in the Application.
Mr Stork maintained the claim that he had been bullied and ABN Group denied that they and their employees have engaged in the alleged behaviour. In its Form F73 Response, ABN Group also raised the objection that the alleged bullying was reasonable management action, carried out in a reasonable manner.
A second conference was arranged for 20 January 2023. The Applicant elected not to attend, informing the Commission by email that he would like to proceed directly to a hearing.
Following the cancellation of the conference, directions were issued for a Conference/Directions Hearing on 7 February 2023 and to direct the Applicant to attend an Independent Medical Examination (IME). The purpose of the listing was to narrow the issues.
On 6 February 2023, the Applicant advised that he was unwell and the listing was adjourned.
On 7 February 2023, the matter was further relisted for 22 February 2023.
On that same day ABN Group advised by email that a conference between Mr Stork and ABN Group had been lodged in the Workplace Injury Commission that clashed with the relisting. The conference was then relisted for 28 February 2023.
On 15 February 2023, ABN Group advised by email that a letter was sent to Mr Stork requesting he attend an IME scheduled for 10 February 2023.[2] ABN Group also advised that Mr Stork raised some concerns with the IME, ABN Group responded to those concerns and then Mr Stork raised further issues. Mr Stork then failed to attend the IME.
On 21 February 2023, Mr Stork lodged an appeal of the directions issued on 20 January 2023.
On 28 February 2023 the conference proceeded as planned, following the conference, the Matter was adjourned to facilitate an IME.
On 20 March 2023, my chambers reached out to ABN Group requesting an update on the progress of the IME.
That same day, ABN Group advised by email that they had wrote to Mr Stork on 6 March 2023 requesting Mr Stork attend an IME on 15 March 2023, providing the reasons why the IME was requested and ‘made clear that the Respondent was providing a reasonable and lawful instruction to attend.’[3] They further advised that they had requested a consent form from Mr Stork on 14 March 2023, that he failed to provide this and that the IME was unable to go ahead. The email concluded by indicating ABN Group was considering what action to take.
On 21 March 2023, the Full Bench heard Mr Stork’s appeal and on 3 April 2023, they handed down a decision dismissing his application for appeal.
On 14 April 2023, my chambers reached out to ABN Group to provide a further update on what actions it had taken.
On 17 April 2023, ABN Group advised by email that they intend to arrange a further IME appointment for Mr Stork to attend.
On 4 May 2023, my chambers issued directions for Mr Stork to provide submissions relating to the relevance of each of the Persons Named prior to hearing the matter of whether a stop bullying order is to be granted.
On 9 May 2023, ABN Group advised by email that it wrote to Mr Stork that it had arranged an IME for Mr Stork for 11 May 2023 and that Mr Stork was to indicate if he did not wish to attend and to provide reasons as to why he should not be dismissed. Mr Stork was advised to provide this response by 4 May 2023. ABN Group advised that Mr Stork neither indicated whether he intended to attend the IME nor provided reasons as to why he should not be dismissed. ABN Group advised that they determined to terminate Mr Stork’s employment on the basis of Mr Stork’s ‘repeated failure to comply with reasonable and lawful instructions.’ ABN Group advised they had provided Mr Stork with a letter of termination on 9 May 2023.
On 19 May 2023, my chambers wrote to the parties advising that it appeared from the previous email sent by ABN Group on 9 May 2023, that Mr Stork’s employment was terminated. Additionally, I provided Mr Stork an opportunity to respond to confirm whether he wished to dispute that he was terminated.
My Chambers received no response from Mr Stork.
On 29 May 2023, my chambers wrote to the parties again advising that as Mr Stork has not contested that he was dismissed, I intended to issue a decision dismissing his application as he is at no risk of being bullied at work. I provided Mr Stork until close of business 2 June 2023 to confirm whether he wished to dispute the advice that his employment was terminated. Additionally, I requested that ABN Group provide a copy of the correspondence sent to Mr Stork terminating his employment.
On 30 May 2023, Mr Stork copied my chambers into an email to ABN Group confirming that he accepts that ABN Group has terminated his employment.
Later that day, ABN Group sent an email forwarding a copy of the email sent to Mr Stork on 9 May 2023 regarding his termination. I confirm that this email contained a letter addressed to Mr Stork advising that following his most recent failure to attend a scheduled IME he was terminated as of 9 May 2023.
Consideration
The remedy available to the Commission in respect to a bullying application is an order to stop bullying of a worker. Relevantly, s.789FF of the Act provides the Commission with the discretion to issue an any order it considers appropriate “to prevent the worker from being bullied at work by the individual or a group of individuals,”[4] where it is satisfied that the worker has been bullied at work; and there is a risk that the worker will continue to be bullied at work.[5]
It is not disputed, and I am satisfied that Mr Stork was a worker for the purposes of the Act at the time he lodged his application. The definition of worker has the same meaning as in the Work Health and Safety Act2011.[6]
The Commission may issue an order to stop bullying, that it considers appropriate, if an application is made under s.789FC, and if it is satisfied that:
i.The worker has been bullied at work by an individual or group of individuals; and
ii.There is a risk that the worker will continue to be bullied at work by the individual or group of individuals.
An order is to have the effect of preventing future bullying behaviour at work by an individual or a group of individuals.
Further the legislation permits the Commission to dismiss applications in certain circumstances. Section 789FE allows circumstances where the Commission can dismiss an application and it refers to another power under s.587. Relevantly, s.587 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.
(2) ...
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.”
Section 587 relevantly provides that the Commission may dismiss an application where there is no reasonable prospect of success, and it may dismiss a matter on application.
ABN Group advised that Mr Stork is no longer an employee of ABN Group. This is not disputed by Mr Stork. As he is no longer an employee of ABN Group, he is no longer a worker for the purposes of s.789FC. Therefore, he is not at risk of bullying at work. It follows that if there is no risk of bullying, the application has no prospect of success.
The meaning and application of the phrase “no reasonable prospects of success” was considered by Deputy President Gostencnik in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank; Bianca Haines (ANZ)[7]. Deputy President Gostencnik considered the authorities and the context of s.587 in similar circumstances where Mr Shaw was dismissed by ANZ since he made the application for an order to stop bullying. The Deputy President considered the implication of no reasonable prospect of success in the following terms:
“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.[8]
“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.[9]
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.”[10]
Similarly, to ANZ, Mr Stork’s status as worker was terminated before the matter was determined. There is no risk that Mr Stork may be subject to bullying at work as his employment has been terminated. Consequently, there is no reason I should not exercise my discretion to dismiss Mr Stork’s application against ABN Group and the Persons Named.
Conclusion
For the reasons outlined above I have decided to dismiss Mr Stork’s application on the basis that the application has no reasonable prospects of success. An order to that effect will be issued.[11]
COMMISSIONER
[1] Current and former employees of ABN Group and the employees of two other organisations.
[2] Respondent’s email dated 15 February 2023
[3] Respondent’s email dated 23 March 2023
[4] Fair Work Act 2009 (Cth) s.789FF(1).
[5] Ibid.
[6] Ibid 789FC(2).
[7] [2014] FWC 3408
[8] Ibid [11]
[9] Ibid [16]
[10] Ibid [17]
[11] PR762630
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