Mrs Priyantha Dheerasundara
[2023] FWC 1261
•2 JUNE 2023
| [2023] FWC 1261 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Mrs Priyantha Dheerasundara
(AB2023/79)
| COMMISSIONER JOHNS | MELBOURNE, 2 JUNE 2023 |
Application for an order to stop bullying – whether application has no reasonable prospects of success – application dismissed.
Introduction
On 3 April 2023, Mrs Priyantha Dheerasundara (Applicant) lodged an application for an order to stop bullying pursuant to s.789FC of the Fair Work Act 2009 (FW Act) with the Fair Work Commission (Commission). The Applicant alleged that she was bullied in her workplace, Serco Citizen Services Pty Ltd (Employer), by a number of co-workers (the Named Persons), and sought orders that the bullying be stopped.
On 4 May 2023, the Employer filed a response to the application raising an objection that the alleged bullying was reasonable management action, carried out in a reasonable manner. The Employer noted that a show cause process was still afoot.
The matter was allocated to my Chambers. It was set down for a mention/directions hearing on 19 May 2023.
On 9 May 2023, the Employer sent an email to my Chambers attaching a letter to the Applicant. It advised that the outcome of the show cause process resulted in the cessation of the Applicant’s casual engagement.
In other words, the Applicant was dismissed. The fact of the dismissal is not in contest.[1]
On 10 May 2023, my Chambers wrote to the Applicant noting that, because she is no longer a “worker”, this presents a barrier to the Commission having the power to grant an order where she is no longer at risk of being bullied. The Applicant was referred to various resources and previous Commission decisions where similar issues were discussed.[2] The Applicant was asked to advise my Chambers by 12 May 2023 whether she still wished to proceed with her application.
The Applicant contacted my Chambers and sought some guidance as to her options. The Applicant was directed to seek her own legal advice.
The Applicant had already been offered access to the Workplace Advice Service facilitated by the Commission at the beginning of her matter. However, I determined that because the Applicant had now been dismissed, she might benefit from another session. Therefore, the Applicant was provided with a further opportunity to obtain free legal advice. She was provided until 26 May 2023 to advise my Chambers of her intention relating to her bullying application.
On 11 May 2023 the Applicant advised my Chambers that she wanted to continue with her application without first seeking the free legal advice service offered. That is a matter for the Applicant.
The Applicant pressed her application further during the mention/directions hearing on 19 May 2023. On that occasion I provided the Applicant with some information about possible alternative applications and suggested her energy might be better spent pursuing an application involving dismissal. Because the dismissal had occurred on 9 May 2023, I brought to the attention of the Applicant the 21-day time limit for making any such application (that is, that she had until 30 May 2023 to make an alternative application).
The Applicant wanted to pursue the present application. Accordingly, it was necessary for me to issue Directions programming the matter for a hearing to determine whether the Applicant’s matter should or should not be dismissed under section 587(1) of the FW Act because, it seemed readily apparent, the application had no reasonable prospects of success. The matter was programmed for a hearing on 31 May 2023.
Legislative framework
Section 789FF of the FW Act provides 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.
(2) In considering the terms of an order, the FWC must take into account:
(a) if the FWC is aware of any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another person or body—those outcomes; and
(b) if the FWC is aware of any procedure available to the worker to resolve grievances or disputes—that procedure; and
(c) if the FWC is aware of any final or interim outcomes arising out of any procedure available to the worker to resolve grievances or disputes—those outcomes; and
(d) any matters that the FWC considers relevant.”
The Fair Work Amendment Bill 2013 Revised Explanatory Memorandum explained the provisions as follows:
“New section 789FF – FWC may make orders to stop bullying
119. New subsection 789FF(1) empowers the FWC to make any order it considers appropriate to prevent a worker from being bullied at work by an individual or group of individuals. Before an order can be made, a worker must have made an application to the FWC under new section 789FC and the FWC must be satisfied that the worker has been bullied at work by an individual or group of individuals. There must also be a risk that the worker will continue to be bullied at work by the individual or group. Orders will not necessarily be limited or apply only to the employer of the worker who is bullied, but could also apply to others, such as co-workers and visitors to the workplace. Orders could be based on behaviour such as threats made outside the workplace, if the threats relate to work.
120. The power of the FWC to grant an order is limited to preventing the worker from being bullied at work, and the focus is on resolving the matter and enabling normal working relationships to resume. The FWC cannot order reinstatement or the payment of compensation or a pecuniary amount.
121. Examples of the orders that the FWC may make include an order requiring:
· the individual or group of individuals to stop the specified behaviour;
· regular monitoring of behaviours by an employer;
· compliance with an employer’s workplace bullying policy;
· the provision of information and additional support and training to workers;
· review of the employer’s workplace bullying policy.
122. New subsection 789FF(2) provides that, when considering the terms of the order, the FWC can take into account any factors that it considers relevant, but must have regard to the following (to the extent that the FWC is aware):
·any final or interim outcomes of an investigation into the matter that is being undertaken by another person or body;
·any procedures available to the worker to resolve grievances or disputes;
·any final or interim outcomes arising from any procedures available to the worker for resolving grievances or disputes.
123. These factors may be used by the FWC to frame the order in a way that has regard to compliance action being taken by the employer or a health and safety regulator or another body, and to ensure consistency with those actions.”
Section 587 of the FW Act sets out when the Commission may dismiss an application. Sections (1) and (3) of the FW Act are in the following terms:
“(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.
…
(3) The FWC may dismiss an application:
a)on its own initiative; or
b)on application.”
Consideration
At the s.587 hearing, the Applicant was self-represented but was accompanied by her support person. The Employer and the named persons were represented by Ms Lisa Tran, Serco’s Associate General Counsel – Employment (in-house counsel).
In coming to this decision, the Commission, as presently constituted, has had regard to the filed material (listed below), the oral evidence and other documents tendered during the hearing:
| Exhibit | Document title |
| 1 | Form F72 |
| 2 | Form F73 |
| 2.1 | Email from the Respondent to the Applicant titled "Outcome to Disciplinary Meeting - Invitation to Show Cause" |
| 2.1.1 | Email chain between parties titled "FW: [EXTERNAL] Re: Priyantha Dheerasundara - Show Cause meeting invite" |
| 2.1.2 | Email chain between parties titled "FW: [EXTERNAL] Re: Privantha Dheerasundara - Show Cause meeting invite" |
| 2.1.3 | Email chain between parties titled "RE: [EXTERNAL] Re: Privantha Dheerasundara - Show Cause meeting invite" |
| 2.1.4 | Letter from the Respondent to the Applicant titled "Outcome of Disciplinary Meeting - Invitation to Show Cause" |
| 2.2 | The Applicant's explanation to Show Cause invitation |
| 2.3 | Letter from the Respondent to the Applicant titled "Outcome of Disciplinary Meeting - Invitation to Show Cause" |
| 2.4 | Letter from the Respondent to the Applicant titled "Suspension of Employment" |
| 2.5 | Letter from the Respondent to the Applicant titled "Invitation to Disciplinary Meeting" |
| 3 | Letter from the Respondent to the Applicant titled "Cessation of casual engagement" |
| 4 | The Applicant's submissions |
| 4.1 | Word document titled "Relevant email . Notes" |
| 4.2 | Word document titled "Complaint 1 17.10.2021" |
| 4.3 | Word document titled "Incidents on Chronological order" |
| 5 | The Respondent's submissions |
| 5.1 | Letter from the Respondent to the Applicant titled “Cessation of casual engagement” |
| 6 | Email from the Applicant attaching screenshots relating to her performance between August 2022 – February 2023 |
The Applicant submitted another document to my Chambers an hour before the hearing. This is identified as Exhibit number 6.
The Applicant’s submissions did not dispute the cessations of her casual employment. However, during the hearing, she submitted that her application should not be dismissed because:
a) her bulling application was lodged when she was a “worker”;
b) the legislative framework is deficient (because it allows an employer to terminate someone’s employment after an application for a stop-bullying order has been made);
c) that she believes she was dismissed because of her bullying application; and
d) other employees still “at work” are being bullied.
I address each of these submissions below.
The Employer’s submissions in turn submitted that given the dismissal, the Applicant no longer meets the elements of s.789FD of the FW Act. Therefore, there can no longer be a casual link between the alleged behaviour and the risk to health and safety. The Employer submitted that in light of the same the Commission should exercise its powers under s.587(1) of the FW Act to dismiss the application on the basis that it has no reasonable prospects of success.
In the decision of Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank; Bianca Haines (Shaw),[3] Deputy president Gostencik 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[4] 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.
[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.”
The present application before me is similar to the case of Shaw. The employment relationship has ended, rendering an application that once may have had some reasonable prospects of success to be devoid of any. Therefore, even if the bullying allegations are substantiated (and I have made no findings of fact about it), the Commission has no power to make any consequent orders. The Commission can only make orders if it is satisfied that there is a risk that the Applicant will continue to be bullied.
It is common ground that the employment relationship has ended. Consequently, there cannot be a risk of the Applicant being bullied at work by the individuals identified in her application because she is no longer at work. The Applicant’s submissions during the hearing did not convince me otherwise.
As noted in the legislative framework above and the case of Ms Aferdita (Rita) Shehu, the relevant provisions are not intended to be remedial, punitive or compensatory, but rather preventative.[5]
The Applicant’s written submissions did not address the section 587 point. Before me I gave the Applicant a further opportunity to convince me that her application had any reasonable prospect of success. Nothing the Applicant submitted convinced me that her stop-bullying application had reasonable prospects of success.
The Applicant’s submissions are answered as follows:
a) Her bulling application was lodged when she was a “worker”;
This is not an answer to a section 587 point. Making an application does not stay or injunct an employer from terminating employment. It might be a brave employer who does so in the face of an active matter before the Commission, but there is nothing to stop them from doing so.
The Applicant seemed to believe (mistakenly) that making the stop-bullying application would protect her from dismissal. The Applicant did not bring an application for interim orders at the time she made her stop-bullying application.
The time when the prospects for success are assessed is not when the application is made, but when the matter is ultimately heard.
b) The legislative framework is deficient (because it allows an employer to terminate someone’s employment after an application for a stop-bullying order has been made);
This is not an answer to a section 587 point. If the Applicant believes that the legislation is deficient or operates unfairly, she should take that up with people who can amend legislation (i.e. politicians). The Commission is bound by the terms of the FW Act.
c) That she believes she was dismissed because of her bullying application;
This is not an answer to a section 587 point. I had previously explained to the Applicant that if her contention was correct, she may have rights in relation to unfair dismissal or a general protections claim.
I note that on 29 May 2023 (within the 21-day timeframe) the Applicant made a general protections claim involving dismissal. Without commenting on the merits of such an application it seems like a more appropriate vehicle for the Applicant to pursue. If, through the general protections application, the Applicant was ultimately reinstated in her employment, and she experiences what she considers to be further bullying behaviours she could commence a fresh stop-bulling application in the Commission. The dismissal of the present application does not bar her from making another one in the future.
d) Other employees still “at work” are being bullied.
This is not an answer to a section 587 point. Stop-bullying applications are personal to individual employees. The Applicant cannot run a class-action like matter on behalf of her former colleagues.
In necessarily follows that the Commission, as presently constituted, does not 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 s.587 of the FW Act to dismiss the Applicant’s application.
Conclusion
The application is dismissed pursuant to s.587 of the FW Act. An order will be issued concurrently with this decision and the Commission will close its file [PR762603].
COMMISSIONER
Appearances:
Mrs P Dheerasundara on her own behalf
Ms L Tran for the Respondent
Hearing details:
2023
Melbourne (by video using Microsoft Teams)
31 May.
[1] However, I was advised today that the Applicant has commenced a general protections claim involving dismissal under section 365 of the FW Act challenging the lawfulness of the dismissal. That application (C2023/3087) was lodged on 29 May 2023 at 17:27 hr.
[2] The Applicant was referred to the following resources: the Anti-Bullying Benchbook; the relevant page of the Commission’s website relating to job loss or dismissal; Shaw v Australia and New Zealand Banking Group Limited t/a ANZ Bank; Bianca Haines[2014] FWC 3409; Tanya Stefanidakis v D & M Plant Hire; Ray Phillips; Noel Jones[2020] FWC 3868; Tara Briggs v Kelsey Pettersen, G8 Education Ltd T/A Kindy Patch West Ipswich[2021] FWC 6650.
[3] Shaw v Australia and New Zealand Banking Group Limited t/a ANZ Bank[2014] FWC 3409.
[4] (2010) 241 CLR 181.
[5] Ms Aferdita (Rita) Shehu [2020] FWC 4544, [28] – [29].
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