P.K.

[2015] FWC 562

[2015] FWC 562

FAIR WORK COMMISSION

DECISION

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

P.K.
(AB2014/1415)

COMMISSIONER HAMPTON ADELAIDE, 11 FEBRUARY 2015

Application for an FWC order to stop bullying - applicant subject to notice of dismissal prior to making the application - whether worker entitled to make the application - whether apparent failure to make bullying complaint in workplace relevant to jurisdiction - whether apparent that no future risk of bullying arises and if so whether the application should be dismissed - application properly made - s.365 application made but no timely election made to proceed to the Court or Commission - no discernable future risk of bullying conduct directed to the applicant - no reasonable prospects of success - no direct connection between dismissal and application - application dismissed as a matter of discretion.

1. Background

[1] On 8 September 2014, Mr P.K (the applicant) made an application for an order to stop bullying under s.789FC of the Fair Work Act 2009 (the FW Act). I will for convenience describe this as the AB application. The AB application alleges bullying conduct by two employees in his workplace which is a relatively small restaurant operation.

[2] The AB application contained a collection of documents to support the applicant’s case. One of the documents was a termination letter from the employer dated 5 September 2014 and this advised that the termination of the applicant would take effect on 19 September 2014.

[3] At the same time as lodging the AB application, the applicant lodged an application under s.372 of the FW Act for an alleged breach of the General Protections. The General Protections matter was assigned to a Member of the Commission and was subsequently withdrawn at a conference on 13 November 2014 as the applicant apparently indicated that he had lodged the application under the wrong provision.

[4] On 21 October 2014, the applicant filed another application for an alleged breach of the General Protections. This new application was made under s.365 of the FW Act, which is a provision applicable in the case of an alleged dismissal. The s.365 matter was the subject of a conference under the FW Act on 13 November 2014, however the matter was not resolved and a certificate 1 to that end was issued by the Commission on 17 November 2014.

[5] The AB application proceeded in the normal course and the responses provided by the employer did not raise any jurisdictional objections but indicated that the applicant had been dismissed and his last shift was 19 September 2014.

[6] The AB application was listed for preliminary proceedings by telephone on 13 October 2014. All parties participated in the conference. The potential consequences of the applicant’s apparent dismissal was raised with the parties, however beyond an assertion that this would preclude the AB application, the employer did not assert a basis for that proposition. Following the conference the parties were directed as follows:

● The employer was to seek further advice and confirm their position in relation to the application, and the jurisdiction of the Commission to deal with the matter as a result of the apparent dismissal of the applicant; and
● Should the employer wish to raise a jurisdictional objection in relation to the application and the termination, then the applicant will be afforded an opportunity to respond to the objection.

[7] The employer subsequently confirmed that its position was that there was “no case to pursue” since the applicant no longer works for it. After confirming that the applicant intended to proceed with the AB application, the Commission wrote to the parties in the following terms:

“The employer advised by email on 20 October 2014 (copy attached) that “there is no case to pursue since the applicant does not work there anymore”. It is clear that the employer is seeking to raise a jurisdictional objection; however it is not clear from that correspondence whether the employer is seeking the application be dismissed at this point. It is also not clear that a copy of that email was ever supplied to the applicant.

The Commission now also understands that Mr P.K. is taking action in the Federal Court of Australia regarding an alleged breach of the General Protections provisions of the Fair Work Act 2009.

As the Commission has an obligation to determine that it has jurisdiction, the question arises as to whether or not Mr P.K. was entitled to bring this application under section 789FC of the Act, that is if Mr P.K. was dismissed prior to bringing the application, was he a worker for the purposes of s789FC(1) of the Act? Further if Mr P.K. is not a worker who is at risk of bullying in the workplace, is there any power to make orders pursuant to s.789FF of the Act?

Both parties are encouraged to seek independent legal advice on the issues raised in this correspondence and to provide written submissions in relation to the matter by no later than 10 December 2014. A copy any submissions filed must be supplied to the other parties.

The Commissioner will then determine the jurisdictional issue based upon the submissions received.”

[8] On 8 December 2014, the employer submitted that as the applicant was no longer in the workplace, and had not previously raised any issues of bullying, the applicant had no case. The employer further sought that the AB application be dismissed.

[9] On 12 December 2014, Commission staff contacted the applicant in relation to the matter and the letter sent on 28 November 2014. The applicant confirmed that he had received the employer’s submission but due to his current financial situation would not be responding to the letter. The applicant also confirmed that he did intend to file an application with the Federal Court of Australia regarding the alleged breach of the General Protections provisions when his finances allowed and would be seeking re-instatement. It was evident from the applicant’s position that he was not discontinuing the AB application and was considering other actions to contest his dismissal. 2

[10] In light of the above, I now need to determine the request from the employer that the AB application be dismissed.

[11] I have dealt with this matter on the facts that are apparent from the AB application and the surrounding circumstances outlined above. These are relevantly that:

● The applicant was given notice of dismissal on 5 September 2014 and the notice was effective on 19 September 2014;
● The applicant filed the AB application on 8 September 2014; and
● The applicant lodged a s.365 application and has obtained the necessary certificate to permit the matter to be taken to the Federal Court (or to the Commission for a consent arbitration) but as at mid December 2014 had not made the necessary application within the timeframe required by the FW Act for such an application. 3

2. The employer’s request that the AB application be dismissed

2.1 The contentions

[12] Taken at its highest, the employer’s position is that the application should be dismissed on the basis of three propositions, namely that:

● The applicant is not a worker and was not eligible to bring the s.789FC application (not a worker at the time);
● The bullying allegations were not raised with the employer prior to the notice of dismissal and the making of the s.789FC application (allegations not raised earlier); and
● There is no risk of bullying in the future because the applicant is no longer in the workplace (no future risk).

[13] I will deal with each of these propositions however it is necessary to recognise the statutory context when considering these matters.

2.2 The statutory context

[14] Section 789FC of the FW Act provides as follows:

“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.

(3) The application must be accompanied by any fee prescribed by the regulations.

(4) The regulations may prescribe:

(a) a fee for making an application to the FWC under this section; and
(b) a method for indexing the fee; and
(c) the circumstances in which all or part of the fee may be waived or refunded.”

[15] Section 789FD of the FW Act defines bullying conduct as follows:

“789FD When is a worker bullied at work?

(1) A worker is bullied at work if:

(a) while the worker is at work in a constitutionally-covered business:

(i) an individual; or
(ii) a group of individuals;

repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and

(b) that behaviour creates a risk to health and safety.

(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.

(3) If a person conducts a business or undertaking (within the meaning of the Work Health and Safety Act 2011) and either:

(a) the person is:

(i) a constitutional corporation; or
(ii) the Commonwealth; or
(iii) a Commonwealth authority; or
(iv) a body corporate incorporated in a Territory; or

(b) the business or undertaking is conducted principally in a Territory or Commonwealth place;

then the business or undertaking is a constitutionally-covered business.”

[16] The capacity of the Commission to make orders is set out in s.789FF of the FW Act 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.”

2.3 Do the employer’s contentions provide a basis to dismiss the AB application?

2.3.1 Not a worker at the time

[17] There is no suggestion that the applicant was not a worker at the time of his employment or dismissal. Indeed, he was an employee engaged by a corporation conducting a business. However, in order to bring the AB application he must have been a worker at the time of lodging that application. This arises from the requirements of s.789FC(1) of the FW Act.

[18] Although the applicant had been given notice of dismissal, he remained an employee (and a worker) until 19 September 2014.

[19] Accordingly, he was a worker at the time of making the AB application and the application is in order, at least on that count.

2.3.2 Bullying allegations not raised earlier

[20] There is no evidence before the Commission regarding the facts surrounding this proposition. It is contended by the employer that the bullying allegations were not raised within the workplace prior to the dismissal or the AB application. For reasons that will become clear, it is not necessary to determine whether that contention is correct for present purposes.

[21] In terms of the timing of the AB application, there is no requirement under the FW Act that a complaint or allegation of bullying be made at the workplace prior to lodging the application. Although in many cases that course of action would be well advised, the fact that this has not occurred is only relevant at the point when the Commission considers whether an Order should be made. This arises under s.789FF(2)(b), and potentially s.789FF(2)(c) and (d), of the FW Act.

[22] The employer’s contentions also imply that the AB application is (only) a response to the notice of dismissal. The AB application has not been heard and no assessment of the merits of the application has been made at this juncture.

[23] Accordingly, even assuming that the bullying allegations were not previously raised as contended by the employer, there is no basis to dismiss the AB application on that ground at this stage of dealing with the matter.

2.3.3 No further risk

[24] To make an order in this jurisdiction, the Commission must be satisfied that there has been relevant bullying conduct. Further, the Commission must be satisfied that there is a risk of further bullying of the applicant at work by the individual(s) whose conduct has led to the finding of bullying conduct. This arises from s.789FF(1)(b)(i) and (ii) of the FW Act.

[25] There is no dispute that an application has been made under s.789FC of the FW Act. The question as to whether the Commission is satisfied that bullying has occurred has not yet been determined. However, as the applicant is no longer in the workplace due to his termination, the question is whether there is a basis which might indicate a continuing risk that the applicant will be bullied at the relevant workplace. In G.C. 4, I made the following observations in relation to a risk of further bullying and the capacity of the Commission to make an order in such circumstances:

“[165] In Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank and Another (Shaw v ANZ), Gostencnik DP was dealing with an anti-bullying application where an applicant, Ms Shaw, had been dismissed by the employer. The Deputy President found as follows:

“[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.”

[166] With respect, I agree with the Deputy President that the import of s.789FF(1)(b)(ii) is that for an order to be made, 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. This requires a consideration of the particular circumstances of the parties including the potential to return to the workplace in some capacity as a worker.

[167] In this case, there is no suggestion that continuing risk of bullying at work will relevantly arise in the absence of an ongoing employment relationship between the parties. That is, there is no basis, in the absence of a continuing employment relationship between the parties, for the applicant to be in the relevant workplace as a worker. As I am not satisfied that there is any such future risk, even if I had concluded that bullying behaviour had occurred within the statutory meaning, there is no basis under the Act to issue any orders arising from this particular application.”

[26] It is clear from the circumstances of this matter, that there is presently no risk that the applicant will be bullied at work by the individual or group of individuals, given the fact that the applicant has been terminated and no longer at work in the relevant workplace. It is however prudent to consider whether there is any reasonable prospect of a relevant risk arising in the future.

[27] In this case, although the applicant may subsequently seek to progress his s.365 General Protections application, he had not done so at the point of last contact with the Commission and had no apparent intention of doing so with any urgency at the time. He may subsequently seek and obtain an extension of time for the necessary election and may, if that occurs, have his s.365 application heard and determined and may potentially seek reinstatement at that time. In these circumstances, the prospect of the applicant again becoming a worker in the relevant workplace is somewhat remote.

[28] Section 789FE allows the Commission to dismiss an application under certain circumstances. 5 Those circumstances are not relevant here, however the Commission also has the power to dismiss an application on the following grounds:

“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.

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.”

[29] The application of “no reasonable prospect of success” has been discussed in similar circumstances in Shaw v ANZ. 6 The Deputy President said (footnotes omitted):

“[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 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.”

[30] As would be clear from the earlier discussion, in the case of a finding that there is no risk of future bullying in a matter such as this, the issue concerns the Commission’s capacity to make an Order in the AB application. This is relevant to the prospects of success for the application but does not go to the jurisdiction to hear the substantive application. Section 587(1) is also written in discretionary terms in that the Commission “may” dismiss the relevant application.

[31] Accordingly, the power to dismiss an application on that basis is discretionary. As alluded to in G.C. above, I consider that the dismissal of an AB application in consequence of the dismissal of an applicant worker is a likely, but not the only, outcome in those circumstances.

[32] In that regard, I note that there is no suggestion that the dismissal of the applicant took place after the AB application and it was not therefore potentially influenced by the making of the application. In my view, this does bear upon the discretion to dismiss the application and in other circumstances it may be appropriate for the Commission to consider holding an AB application in abeyance where there is an apparently related dismissal that is being actively contested. This is ultimately a matter of judgement in the particular circumstances of each case.

[33] Other considerations bearing upon that judgement would include the statutory directive 7 for the Commission to deal with these matters promptly and the nature and circumstances of the parties.

[34] I also note the capacity of the applicant to bring a new AB application in the, admittedly unlikely, event that a risk of (further) bullying of the applicant as a worker by the relevant individuals at the particular workplace arises in the future.

3. Conclusions and Order

[35] Two of the three contentions arising from the employer’s position do not provide a relevant basis for the dismissal of the AB application at this point. However, in light of the circumstances of this matter, I find that there is no reasonable prospect of an order being made given the absence of a discernable future risk of relevant bullying conduct. This means that there is no reasonable of success given the particular powers of the Commission to make Orders in this jurisdiction.

[36] In all of the circumstances outlined above, I consider that as a matter of discretion the AB application should be dismissed. I so order.

 1 Section 368(3) of the FW Act.

 2   The applicant requested the provision of an unfair dismissal application. No application was subsequently lodged with the Commission.

 3 Sections 369 and 370 of the FW Act requires an election to proceed to the Commission or the Court must be made within 14 days of the issuing of the certificate or such further period allowed by the Commission or Court as appropriate.

 4   [2014] FWC 6988.

 5 FWC may dismiss an application under section 789FC if the FWC considers that the application might involve matters that relate to: (a) Australia’s defence; or (b) Australia’s national security; or (c) an existing or future covert operation (within the meaning of section 12E of the Work Health and Safety Act 2011) of the Australian Federal Police; or (d) an existing or future international operation (within the meaning of section 12E of the Work Health and Safety Act 2011) of the Australian Federal Police.

 6   [2014] FWC 3408.

 7 Section 789FE(1) of the FW Act.

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