Paula Thomas

[2014] FWC 5235

[2014] FWC 5235

FAIR WORK COMMISSION

DECISION

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

Paula Thomas
(AB2014/1054)

COMMISSIONER CRIBB MELBOURNE, 4 AUGUST 2014

Application for an order to stop bullying.

[1] Ms Paula Thomas (the applicant) has made an application under s.789FC of the Fair Work Act 2009 (the Act) for an order to prevent her from being bullied at work.

[2] The application was the subject of a conference but a settlement was not reached. The application was heard on 6 May 2014 and 5 June 2014. Written closing submissions were subsequently filed by Ms Thomas and the employer on behalf of itself and the individual named.

[3] At the conclusion of the employer’s written closing submissions, the Fair Work Commission (the Commission) was advised that Ms Thomas was no longer an employee of the employer. 1 This was confirmed by Ms Thomas in her closing submissions in reply.2 As a result of being advised of the change to Ms Thomas’ employment with the employer, the Commission wrote to Ms Thomas and the employer. They were invited to make submissions about whether the Commission still has power to make an order to stop the bullying as sought by Ms Thomas. Written submissions have been filed by Ms Thomas and the employer on this issue.

SUBMISSIONS

(a) Ms Thomas

[4] It was submitted by Ms Thomas that sufficient evidence has been provided to support her claim of bullying in the workplace. Ms Thomas stated that it had been proved that the individual named has not only bullied her but also other members of staff. 3

[5] Ms Thomas argued that the termination of her employment did not prove that the bullying did not occur. Rather, it was said to support her bullying claim. She also indicated that, if it was up to her, she would still have her job with the respondent.

[6] The main concern now was said to be for the safety and well being of other staff members who may be bullied by the individual named in the future. It was stated by Ms Thomas that there is no protection for other employees if the order is not issued by the Commission. 4

[7] Finally, it was argued that the Commission has seen much evidence in support of, and as proof of, Ms Thomas’ application. If the Commission wishes not to issue the order sought, as requested by the employer, it was stated that, then, there is no justice. 5

(b) The employer

[8] The employer argued that three different Members of the Commission have considered the issue of jurisdiction where the applicant is no longer an employee. The Commission was referred to the decision in Mr M T 6 in addition to the two decisions which were raised with the parties.7

[9] It was submitted that none of these decisions has been disturbed. Therefore, it would follow that, as Ms Thomas is no longer employed by the respondent, the Commission does not have jurisdiction to deal with this matter further. 8

CONSIDERATIONS AND CONCLUSIONS

[10] As indicated in paragraph three above, the Commission was advised of Ms Thomas’ changed employment circumstances by the employer’s written closing submissions. This was confirmed by Ms Thomas in her written closing submissions in reply. Having been advised of the change in Ms Thomas’ employment situation, it was therefore necessary that the Commission take this into account.

[11] In advising the parties of this, the Commission referred to two decisions. One of them was Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank; Bianca Haines 9 (Shaw). In this decision, Deputy President Gostencnik made the following observations:

“[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 10 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. 11

[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.”

[12] As set out in Shaw’s case, circumstances have changed since Ms Thomas made her application on 13 February 2014. It was common ground that Ms Thomas has been dismissed from her employment with the employer.

[13] Even if the Commission is satisfied that Ms Thomas was bullied at work within the meaning of section 789FD of the Act, the Commission can only make an order to stop the bullying if it is satisfied that there is a risk that Ms Thomas will continue to be bullied at work (section 789FF(1)(b)(ii)).

[14] As it was agreed between Ms Thomas and the employer that the employment relationship has ended, there cannot be a risk of Ms Thomas being bullied at work by the named individual in her application because Ms Thomas is no longer at work.

[15] It necessarily follows that the Commission does not have the power to make an order to stop the bullying. The Commission is satisfied that Ms Thomas’ application has no reasonable prospect of success. Consequently, the Commission exercises its discretion under section 587 of the Act to dismiss the application for want of jurisdiction.

[16] An order 12 dismissing the application will be issued with this decision.

 1   Submissions for the Respondent, dated 20 June 2014

 2   Response to Final Submissions from the Respondent, dated 24 June 2014, at page 9

 3   Submissions of the Applicant, dated 23 July 2014

 4   Ibid

 5   Ibid

 6   [2014] FWC 3852

 7   Further Submissions for the Respondent, dated 23 July 2014

 8   Ibid

 9   [2014] FWC 3408

 10 (2010) 241 CLR 181

 11   Ibid at [59] - [60]

 12   PR553843

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