Robyn McGlone

[2019] FWC 7275

[2019] FWC 7275

FAIR WORK COMMISSION

DECISION

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

Robyn McGlone
(AB2019/394)

COMMISSIONER HAMPTON ADELAIDE, 31 OCTOBER 2019

Application for an FWC order to stop bullying – applicant dismissed from employment – application by respondent employer for stop-bullying application to be dismissed under s.587(1)(c) of the FW Act – whether reasonable prospects of success given statutory requirements for an order to be made given the future risk import of s.789FF(1)(b) – factors for Commission to consider discussed – particular circumstances of this case assessed – not presently satisfied that no reasonable prospects of success demonstrated – matter of discretion does not arise – application adjourned with liberty to apply.

1. What this decision is about

[1] On 19 July 2019, Ms Robyn McGlone made an application for a stop-bullying order (the stop-bullying application) under s.789FC of the Fair Work Act 2009 (FW Act). The application contends that a number of individuals engaged by the Employer, Japara Administration Pty Ltd (Japara) have behaved unreasonably so as to constitute workplace bullying. Those allegations of workplace bullying are disputed. Japara and the individuals named in the application are collectively the respondent parties in the stop-bullying matter.

[2] As a result of the termination of Ms McGlone’s employment on 25 July 2019, Japara has now sought to have the stop-bullying application dismissed by the Commission under s.587(1) of the FW Act on the basis that the application had no reasonable prospects of success (the s.587 application). Put briefly, the s.587 application is founded on the contention that as Ms McGlone has been dismissed and is no longer in the workplace, there would be no basis to make an order because there is no foreseeable future risk of relevant workplace bullying.

[3] Ms McGlone opposes the s.587 application and seeks that she be able to advance the stop-bullying application and a related application she has made under s.394 of the FW Act (the unfair dismissal application). I note that the unfair dismissal application is to be subject to hearing and determination by another arm of the Commission in December of this year.

[4] This decision deals with the s.587 application.

[5] Given the dispute about the status of this matter, and following a conference conducted by the Commission, Directions were issued enabling the parties to provide evidence and submissions concerning the s.587 application. Liberty was also granted for the parties to seek a hearing.

[6] No party subsequently sought to have a hearing conducted in relation to this matter. As a result, I have determined the matter based upon the written submissions and the circumstances evident from the materials as provided by the parties. For reasons that will become clear, in dealing with this present application I have not considered or made any findings about the substantive merit of the stop-bullying application and the response provided by the respondent parties.

2. The cases advanced by the parties

2.1 Japara Administration Pty Ltd and the individuals named

[7] Japara and the individuals named contend 1 that the stop-bullying application should be dismissed on the following grounds:

•  Ms McGlone was at the time of filing the stop-bullying application subject to an internal disciplinary process and this was finalised on 25 July 2019 with the Applicant’s dismissal;

•  Ms McGlone acknowledges and does not deny her employment has been terminated and whilst she is challenging that decision, she is seeking “financial compensation” but does not seek reinstatement with Japara; 2

•  As Ms McGlone is no longer employed by Japara and is not at work, the Commission could not be satisfied that there is a future risk of the Applicant being bullied at work so as to meet the future risk requirement of s.789FF of the FW Act;

•  As a result, the stop-bullying application has no prospects of success;

•  Any amendment to the remedy sought by Ms McGlone, including to seek reinstatement, and the unfair dismissal proceedings more generally, does not preclude the Commission from exercising its discretion to dismiss this application; and

•  There is no prejudice to Ms McGlone, as in the unlikely event that her employment with Japara was reinstated, there is nothing to preclude her from making another application, subject to the jurisdictional facts being established in relation to that application.

[8] The respondent parties referred to a number of decisions of the Commission relying upon these considerations and contend that the s.587 application is consistent with the outcomes in those matters.

2.2 Ms McGlone

[9] Ms McGlone, who is representing herself in this matter, provided a Statutory Declaration 3 outlining her position. I understand that this explains her position in relation to both the stop-bullying application and the unfair dismissal matter. Relevantly for present purposes I understand that Ms McGlone’s position is that:

•  The stop-bullying application should continue and be dealt with on its merits so that a change in “culture” occurs and the “bullies” are “properly dealt with”;

•  There is merit in both applications;

•  In the unfair dismissal matter, reinstatement with a loss of wages is being sought and if not, then fair compensation; and

•  A fair hearing from the Commission is sought.

3. Consideration

[10] The capacity for the Commission to dismiss an application on the basis that it has no reasonable prospects of success is provided by s.587(1)(c) of the FW Act in the following terms.

“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.

(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.”

[11] The provision establishes a discretion to dismiss an application by virtue of the expression “may”. Subject to the limitations in subsection (2), which are not relevant to this matter, that discretion arises when the Commission is satisfied that one (or more) of conditions in subsection (1) have been met.

[12] In the context of a stop-bullying application, this may arise from the preconditions for the making of such an order set out in s.789FF(1) 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)  … …”

[13] In the matter of Dr Say Teong Ng, 4 I reviewed the relevant Full Bench authorities and considered how the Commission should approach the question of whether an application has ‘no reasonable prospects of success’ in similar circumstances to this matter. Consistent with this matter, in Dr Ng, the applicant was challenging the loss of employment and was actively seeking reinstatement as a remedy. I note however, that Dr Ng expressly sought that his stop-bullying matter be held in abeyance pending the outcome of his unfair dismissal matter; a distinction from Ms McGlone’s apparent position.

[14] Without repeating the extensive consideration set out in Dr Ng, it is beneficial to note that the following broad propositions are relevant to this matter:

•  The cessation of the employment or contractual relationship may provide a context in which the stop-bullying application has no reasonable prospects of success by virtue of the import of s.789FF(1)(b) of the FW Act. This is not a reflection upon the substantive merit (or otherwise) of that application (s.789FF(1)(b)(i)), but rather, consideration only of whether there is the absence of one of the (other) prerequisites for the making of any orders from such an application due to the fact that the applicant is no longer a worker at potential risk in the relevant workplace (s.789FF(1)(b)(ii)). However, in making that assessment the Commission must consider whether there is any other context in which the applicant might, as a worker, be subject to the risk of future workplace bullying conduct in the relevant workplace.

•  Such a context could include where the applicant already has other work where they are likely to be involved in the relevant workplace in that capacity, or in my view, where there is some identifiable prospect that the applicant will return to the workplace as a worker as a result of some other intervention, such as a reinstatement order made by the Commission or by the Court. In that regard, this could well arise when an applicant had actually made a timely relevant application and was genuinely and actively seeking that particular form of remedy. The prospect of these events occurring must certainly be something more than mere speculation; however, the finding that there are no reasonable prospects of success is not a finding to be made lightly.

•  Further, if there is a finding of no reasonable prospects, the dismissal of an application under s.587 of the FW Act remains a matter of discretion and each case must be considered on its merits. The impact upon other parties, including the individuals named in the application and the employer/principal are also relevant considerations in the case management of a stop-bullying matter, including any decision to dismiss it on the grounds raised here. These latter considerations, and the fact that an applicant can make a fresh stop-bullying application should circumstances change, are relevant to the discretion, but not to the assessment of whether there are no reasonable prospects of success present in the extant application.

[15] In this case, Ms McGlone was dismissed by Japara after the stop-bullying application had been filed and the Commission had commenced to deal with the application, but before any determinative proceedings had been conducted. No inferences are drawn from the sequence of events here and the Commission has not formed any view about the objective merit of that application or the response provided by the respondent parties. Further, in the circumstances, with one potential exception, there is also no probable basis upon which Ms McGlone will return to the workplace in any capacity as a worker. Ms McGlone’s unfair dismissal application is however an important consideration bearing upon that prospect and this is relied upon by her to suggest that her stop-bullying application not be dismissed at this point. Japara contend that Ms McGlone is primarily seeking compensation and that she would have to amend her application to seek reinstatement; an outcome Japara further contends to be “unlikely”.

[16] As confirmed in her statement, 5 Ms McGlone is seeking reinstatement to her former position at Japara. Further, her unfair dismissal application is due to be heard and determined by the Commission in the coming months. Should Ms McGlone’s dismissal be considered unfair, reinstatement, as the primary remedy,6 may be ordered. Although the proportion of reinstatements in the Commission’s unfair dismissal jurisdiction is relatively low and Japara is strongly opposing that outcome in Ms McGlone’s case, I am not satisfied to the required degree that in the context of this matter she has no reasonable prospects of success in the stop-bullying application by virtue of her dismissal. Whether she is ultimately successful in the unfair dismissal application and is reinstated is a matter for that arm of the Commission to determine. Further, a finding that she will not be reinstated, or rather there is no reasonable prospect of this occurring, is not a finding that can appropriately be made by this arm of the Commission at this juncture.

4. Conclusions

[17] Given these findings I am not satisfied at this point that there is no reasonable prospect that a basis to satisfy the second limb of s.789FF of the FW Act can be established. This in turn impacts upon the assessment of whether there is no reasonable prospect that the stop-bullying application can succeed. As a result, there is no basis at this juncture to find that the stop-bullying application has no reasonable prospects of success and no discretion to dismiss that application based upon the termination of Ms McGlone’s employment arises.

[18] However, given the status of the unfair dismissal matter and the impact that this will have on whether the stop-bullying application can ultimately succeed, it is not appropriate to further advance the stop-bullying application until the outcome of the other matter is known.

[19] It is important to emphasise that this decision is not a reflection upon the substantive merit of the stop-bullying application and this has not yet been heard. This also does not reflect a lack of appreciation for the consequences for the respondent parties and for reasons outlined earlier, should I have found that there was no reasonable prospects of success, considerations of that type would have been influential in any discretion to be exercised. 7

[20] I am also alert to the fact that circumstances surrounding the unfair dismissal matter may change at any point up to and including a change in the Applicant’s desired outcome, the resolution or withdrawal of the matter, or a decision being made by the Commission. Any of these developments could provide a basis to revisit this s.587 application to dismiss.

[21] As a result, this stop-bullying application is to be held in abeyance, with general liberty given to the parties to apply as foreshadowed above.

COMMISSIONER

Appearances:

R McGlone, the Applicant, on her own behalf.

J Anderson for Japara Administration Pty Ltd.

Preliminary conference details (by Telephone):

2019

18 September.

Written submissions:

8 October 2019 – Japara Administration Pty Ltd.

18 October 2019 – Ms McGlone.

Printed by authority of the Commonwealth Government Printer

<PR713562>

 1   Respondent’s written submissions, 8 October 2019; also relying upon a Statutory Declaration of Ms Anderson, Japara’s Industrial Relations Manager.

 2   This ground is based on a response originally contained in Ms McGlone’s Form F2 Unfair Dismissal Application.

 3   Statutory Declaration 17 October 2019

 4   [2019] FWC 3055 (Dr Ng).

 5   Statutory declaration 17 October 2019.

 6 Section 390 of the FW Act.

 7   See Mekuria v MECCA Brands Pty Ltd t/a Mecca Cosmetics and others[2019] FWCFB 1093 at [19](3).