Phillip Stone - [2018] FWC 6408

[2018] FWC 6408

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.789FC - Application for an order to stop bullying

Phillip Stone

(AB2018/578)

COMMISSIONER HAMPTON

ADELAIDE, 17 OCTOBER 2018

Application for an FWC order to stop bullying – applicant dismissed prior to service of application – general protections application filed – whether future risk of bullying conduct – whether reasonable prospects of success – no future risk – application dismissed as a matter of discretion.

On 18 September 2018, Mr Phillip Stone (the applicant) made an application for an order to stop bullying under s.789FC of the Fair Work Act 2009 (the Act).

During the Commission’s initial telephone contact with Mr Stone, he advised that he had been terminated from his employment on 19 September 2018. The potential consequences of his status as a former employee for this application were raised with Mr Stone by the Anti-Bullying Case Management Team; however, he confirmed that he wished to proceed with his application.

Having received a response to the application from the respondent party, the stop-bullying application was subsequently listed for a telephone conference before this arm of the Commission on 3 October 2018. Despite proper notice of the conference being given to all relevant parties, there was no participation by Mr Stone or anyone on his behalf and the Commission was unable to make contact with him via telephone. It was noted that Mr Stone has apparently taken steps to contest his termination by filing a General Protections Application on 20 September[1].

The applicant’s employer, Focus on Furniture Pty Ltd, participated in the conference and made a verbal application[2] to have the stop-bullying application dismissed on the basis that as Mr Stone was no longer in the workplace there is no risk of bullying in the future. For convenience I will describe this as the “no future risk jurisdictional issue” and note that this arises from the prerequisites established by the Act for the making of any stop-bullying order.

On 4 October 2018, correspondence from the Commission was sent to Mr Stone (and the employer), setting out the events to date, the basis of the no future risk jurisdictional issue, and some information resources about the issue. Directions were also issued requiring Mr Stone to provide the following to the Commission:

“1.Confirmation as to whether you object to the dismissal of this application on the basis that there is no future risk; and
2.If you do object to this course of action, provide a submission setting out the grounds upon which you say the Commission can continue to deal with your application.

The Commission will determine the application based upon the information and materials then before it, unless a party seeks a hearing and/or where the Commission determines that a hearing in relation to the jurisdictional issue is appropriate.”

Mr Stone subsequently contacted the Commission by email later in the evening of 4 October, regarding a text message from an employee of the employer that he considered to be harassment and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Phillip Stone

Details

AGLC: Phillip Stone [2018] FWC 6408
Case: [2018] FWC 6408
Decision Date: 17 OCTOBER 2018

CaseChat Overview and Summary

Phillip Stone applied to the Fair Work Commission (FWC) for an order to prevent bullying at work. He alleged that he had been subjected to unreasonable behaviour by his employer, which led to his dismissal. The nature of the dispute involved whether the FWC should exercise its discretion to grant relief despite the applicant having been dismissed prior to the service of the application. The court had to determine if there was a future risk of bullying conduct and if there were reasonable prospects of success in the application. The decision hinged on whether the FWC would deem it appropriate to proceed with the application under the circumstances.

The legal issues centred on the interpretation and application of the relevant sections of the Fair Work Act 2009. Specifically, the court needed to assess whether there was a real and immediate risk of the alleged bullying conduct continuing in the future, and whether the application had reasonable prospects of success. Additionally, the court had to consider the discretionary power of the FWC to hear the matter despite the applicant's dismissal. The primary focus was on whether the applicant could still be considered an employee for the purposes of the application, given the dismissal.

The FWC held that there was no future risk of the alleged bullying conduct occurring, as the applicant had been dismissed and was no longer in a position where such conduct could be directed at him. The court concluded that there were no reasonable prospects of success in the application, as the applicant was no longer an employee and could not be subjected to the alleged conduct. Given these findings, the FWC exercised its discretion to dismiss the application. The decision emphasised the importance of the applicant's status as an employee at the time the order was sought and the absence of a future risk of the alleged conduct.

No specific orders were made as the application was dismissed as a matter of discretion. The court found that the applicant's dismissal prior to the service of the application precluded the FWC from proceeding with the matter. The decision underscored the need for the applicant to be an employee to seek relief under the relevant provisions of the Fair Work Act.

Orders