Ms Olga Lokteeva v Woolworths Limited

[2016] FWC 3603

[2016] FWC 3603

FAIR WORK COMMISSION

DECISION

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

Ms Olga Lokteeva
v
Woolworths Limited; Mr David Hayes; Ms Eva McGinley
(AB2015/727)

COMMISSIONER RIORDAN SYDNEY, 28 JULY 2016

Application for an FWC order to stop bullying.

[1] This decision relates to an application by Ms Olga Lokteeva for an order against Woolworths Ltd (Woolworths) to stop bullying under section 789FC of the Fair Work Act, 2009 (the Act). The application alleged possible/perceived bullying by two individuals who were investigating a disciplinary matter involving Ms Lokteeva.

[2] This complaint has been the subject of three conferences before the Fair Work Commission (FWC), a FWC Recommendation and at least twenty forms of correspondence.

[3] Woolworths made an application on 1 June 2016 to have the FWC dismiss the matter in accordance with section 587 of the Act.

[4] Section 587 of the Act states;

(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.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

[5] Ms Lokteeva was represented by her husband Mr Lokteev. Woolworths were represented by Ms Nicole Barclay, an Employee Relations Specialist employed by Woolworths.

[6] The alleged bullying behaviour identified by Ms Loketeeva was resolved by Woolworths complying with a recommendation from the FWC, as presently constituted, issued on 3 December 2015, by removing the two employees from the investigation process.

[7] At the conclusion of the disciplinary process, Woolworths gave a commitment to Ms Lokteeva that she would no longer have any reporting relationship or regular contact with the two managers who were the subject of this complaint.

[8] Ms Lokteeva accepted the outcome of the disciplinary process, including the new reporting regime.

[9] During a lengthy report back teleconference on 18 April 2016, Mr Lokteev would not accept that the matter has been resolve and requested that this matter be arbitrated.

[10] I requested that Mr Lokteev provide the FWC with the basis for the arbitration and the draft order that would be sought as a result of the arbitration. Mr Lokteev has not complied with this request but continues to request an arbitration to determine whether Ms Lokteeva had been bullied in the past.

[11] Woolworths submitted an application that the matter be dismissed by the FWC for the following reasons;

“1. The Applicant is not currently at work, and has been off on extended absence due to asserted illness since 19 January 2016 in circumstances where it is not known when, if ever, the Applicant might be able to return to work (save only that it will not be before at least 5 August 2016). Indeed, even to date, the Applicant has given no indication to Woolworths of when she expects to return.

2. Further and in the alternative, Woolworths has made a commitment that, if and when the Applicant returns to work, Woolworths will appoint the Applicant as Store Manager to a new store, so that she does not have any reporting relationship to, or regular contact with, Ms McGinley or Mr Hayes.

Notwithstanding that Woolworths denies any bullying has occurred, in circumstances where Woolworths has given this commitment, and the Applicant has not made any suggestion that there is, or could be, any other source of bullying, Woolworths submits that there is no basis on which the Commission could be satisfied that there was any risk to the Applicant that she may in future be bullied at work, as required by section 789FF91) of the Fair Work Act.” 1

[12] After a further attempt to explain the situation to Mr Lokteev on 14 July 2016, Mr Lokteeva once again responded on 22 July 2016, requesting that the matter be set down for arbitration.

[13] I remain confused as to the motives of Ms Lokteeva in pursuing this application. I have endeavoured to give Ms Lokteeva ample opportunity to consider, substantiate or refine her position but all efforts have proven to be unsuccessful.

[14] In Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank 2, Gostencnik, DP discussed the application of section 587 and the meaning of the phrase “no reasonable prospects of success”;

“[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 3 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. 4

[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.”

[15] In Dr Pushpa Ravi v Baker IDI Heart and Diabetes Institute Holdings Limited T/A Baker IDI Heart and Diabetes Institute; Dr Anne Reutens 5, Gostencnik, DP held;

“[13]…The prospect of conducting proceedings simply for the purpose of establishing whether bullying occurred without current prospects of an order being made is not in my opinion proper nor in the interests of justice and would be contrary to sound case management principles.

[14]In the event that Dr Ravi obtains employment with Baker IDI in the future and she remains concerned about the risk of continued bullying, a fresh application is not excluded and the allegations of past bullying can be relied upon in support of such an application.”

[16] I am prepared to accept that Ms Lokteeva’s application may have had some prospect for success at its inception. Ms Lokteeva was concerned about the role that Mr Hayes and Ms McGinley would play in the disciplinary investigation. However, as a result of Woolworths’ complying with the FWC Recommendation, Mr Hayes and Ms McGinley were removed from the disciplinary process. The investigation has now concluded and the outcomes agreed. There is no further prospect of Ms Lokteeva being bullied or harassed during this investigation.

[17] Further, in case there is some ongoing personal tension between Ms Lokteeva and either Mr Hayes and Ms McGinley, Woolworths has, without prompting, given a commitment that Ms Lokteeva will not be required to report to, or have regular contact with, either manager.

[18] In G.C. 6 Hampton C found that;

“[166] …the Commission must be satisfied that there is a risk that the (applicant) worker will continue to be bullied at work by the individual or group (found to have bullied the applicant). For my part, where an applicant will no longer be at work with the relevant individual or group, and there is no reasonable prospect of that occurring in some capacity as a worker in the future, in almost all cases it will not be possible for an applicant to demonstrate the future risk requirement…”

[19] I agree with the reasoning of Deputy President Gostencnik and Commissioner Hampton in the cited cases.

[20] It would not be fair or reasonable to submit either party to the expense or inconvenience associated with the preparation and participation in an arbitration if the application has no prospect of success. It would be unfair on Woolworths to bear the costs associated with the proceedings, whilst I have real concerns of the effects that an arbitration proceeding would have on the health of Ms Lokteeva.

[21] After taking into account all of the correspondence, submissions and legal precedent provided by the parties. I find that there is no future risk of Ms Lokteeva being bullied by Mr Hayes or Ms McGinley. I find that Ms Lokteeva’s application has no reasonable prospect of success.

[22] I dismiss the application in accordance with section 587 of the Act.

[23] I thank Woolworths’ for their patience and understanding during the conduct of this matter. I wish Ms Lokteeva well in her on-going carer at Woolworths.

COMMISSIONER

 1   Letter dated 1 June 2016 from Ms Barclay

 2   [2014] FWC 3408

 3 (2010) 241 CLR 181

 4   Ibid at [59] - [60]

 5   [2014] FWC 7507

 6   [2014] FWC 6988

Printed by authority of the Commonwealth Government Printer

<Price code C, PR581143>