Ms Deborah Eivers
[2017] FWC 6523
•7 DECEMBER 2017
| [2017] FWC 6523 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Ms Deborah Eivers
(AB2017/271)
| COMMISSIONER JOHNS | CANBERRA, 7 DECEMBER 2017 |
Application for an FWC order to stop bullying.
Background
On 15 May 2017 Ms Deborah Eivers (Applicant) made an application under section 789FC of the Fair Work Act 2009 (Act) for an order to stop bullying.
The Application named three people. On 1 June 2017 they jointly filed a Form F74– Response from a Person Against Whom Bullying has been Alleged to an Application for an Order to Stop Bullying. On 1 June 2017, the Employer filed a Form F73 – Response from Employer/Principal to an Application for an Order to Stop Bullying.
The matter was subsequently listed for Conference by telephone before Commissioner Johns on 15 June 2017 (Conference).
On 14 June 2017, the Applicant advised the Commission by email that her General Practitioner had advised against attendance of the Conference and that she had “advised her Lawyer to represent me at the next available time”. At this time the Applicant had not nominated an agent to represent her, nor had said agent made an application to the Commission to represent the Applicant.
On 15 June 2017 the Commission advised that since the Applicant did not provide a medical certificate, follow procedure on how to apply for an adjournment or have a solicitor on record as a representative, the Conference would go ahead.
On 15 June 2017, the Applicant did not make herself available for the Conference and it proceeded regardless. The Applicant was advised by the Commission by email that the Employer was willing to appoint an independent investigator once the Applicant was well enough, and that the Commission was willing to relist the matter for Conciliation on the same basis.
On 24 October 2017, the Commission sought an update from the parties about the status of the matter.
On 30 October 2017, the representative for the Employer responded that:
a)they had made attempts to investigate the complaints;
b)the Applicant was unable or unwilling to participate;
c)the Applicant remained on paid leave between 31 March 2017 and 20 October 2017;
d)on 9 October the Employer was informed by one of its competitors that the Applicant had commenced work with them on a full-time basis;
e)as a result the Applicant’s employment with the Employer was terminated on 27 October 2017; and
f)accordingly there is no jurisdictional basis for the application and requests that it be dismissed.
On 28 November 2017 the Commission directed that the Applicant must file a submission explaining how the Commission continues to have jurisdiction in relation to the matter by 5:00pm on 5 December 2017.
The Applicant did not make this submission.
Determination
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.”
[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.”
Shaw’s case is similar to the present in that the employment relationship had ended due to the Employer terminating the Applicant.
In the present matter, the Commission may only make an order to stop the bullying if it is satisfied that there is a risk that the Applicant will continue to be bullied at work.[2]
The Employer has submitted that the Applicant is no longer “at work”, an assertion the Applicant has not contested, despite being afforded an opportunity to do so. As such 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.
Consequently, 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 section 587 of the Act to dismiss the Applicant’s application for want of jurisdiction.
An order dismissing the application will be issued concurrently with this decision.
COMMISSIONER
[1] [2014] FWC 3408
[2] Fair Work Act 2009 (Cth) S 789FF(1)(b)(ii).
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