Ross Kennedy

[2020] FWC 1405

[2020] FWC 1405

FAIR WORK COMMISSION

DECISION

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

Ross Kennedy
(AB2016/437)

DEPUTY PRESIDENT KOVACIC CANBERRA, 17 MARCH 2020

Application for an FWC order to stop bullying – Applicant dismissed from his employment – no risk of continued bullying at work – application for order to stop bullying dismissed on the basis of no reasonable prospect of success.

[1] On 30 May 2016 Mr Ross Kennedy (the Applicant) filed an application under s.789FC of the Fair Work Act 2009 (the Act) seeking an order to stop bullying in accordance with Part 6-4B of the Act. In his application, Mr Kennedy alleged that he had been bullied by a number of persons at work. Mr Kennedy was employed by Qantas Ground Services Pty Limited (QGS) which is part of Qantas Airways Limited.

[2] Mr Kennedy’s application was the subject of several conferences convened by the Fair Work Commission (the Commission) in 2016, with the outcome of an independent medical examination being a precursor to his application being relisted in 2017. A further conference scheduled for 17 November 2017 did not proceed in circumstances where QGS terminated Mr Kennedy’s employment on 2 November 2017. Mr Kennedy subsequently filed an unfair dismissal application with the Commission on 3 November 2017. At Mr Kennedy’s request, the Commission agreed to hold his bullying application in abeyance pending determination of his unfair dismissal application.

[3] In recent developments,on 26 February 2020 Mr Kennedy discontinued his unfair dismissal application having reached a settlement with QGS.

[4] Against that background, the Commission wrote to Mr Kennedy on 27 February 2020 as follows:

“I write regarding your application made under s.789FC of the Fair Work Act 2009 (the Act) seeking an order to stop bullying (AB2016/437). As you may recall, that application has been held in abeyance pending determination of your unfair dismissal application (U2017/11691).

In circumstances where you last night filed a notice of discontinuance in respect of your unfair dismissal application, there is no apparent utility in the Fair Work Commission dealing with your bullying application given that one of the threshold requirements for the making of an order, i.e. the risk that the worker will continue to be bullied at work [s.789FF(1)(b)(ii) of the Act], no longer exists. Accordingly, I write to inquire as to whether you intend to file a Notice of Discontinuance in respect of your bullying application (for ease of reference, I have attached a copy of the Form F50 – Notice of discontinuance).

Should you choose not to discontinue your bullying application, I would foreshadow my intention to dismiss your bullying application on the basis that it has no reasonable prospects of success. By way of background, the Commission has in a number of instances dismissed bullying applications in circumstances where the applicant has either been dismissed or resigned from their employment (e.g. see Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2014] FWC 3408 where the Commission found that, as the employment relationship had ended, there was no power to make an order to stop bullying and, as a consequence, the application had no reasonable prospects of success). This is because as mentioned above a key consideration for the making of an anti-bullying order is that there is a risk that the worker will continue to be bullied at work. Once the employment relationship has ended the employee is no longer employed and therefore is no longer at work.

It would be appreciated if you could advise my chambers by close of business on Thursday, 5 March 2020 of your preferred course of action and/or any reasons as to why you consider your bullying application should not be dismissed.”

[5] In the absence of a response from Mr Kennedy, the Commission wrote to him againon6 March 2020 in the following terms:

“The Commission is yet to receive a response to the attached correspondence email [sic] to you on 27 February 2020 regarding your application for an order to stop bullying. A response was requested to the issues raised in the correspondence by close of business on 5 March 2020.

In the absence of a response, I write to provide you with a further opportunity to respond by no later than close of business on Tuesday, 11 March 2020. Alternatively, as indicated in the correspondence, you may simply wish to discontinue your bullying application.

Should you not respond by that time, or alternatively discontinue your bullying application, it will be taken that you do not object to your application for an order to stop bullying being dismissed.”

[6] Mr Kennedy has not responded to the Commission’s most recent correspondence.

The statutory framework

[7] The relevant provisions of the Act are set out below.

“789FE FWC to deal with applications promptly

(1) ...

(2) However, the FWC may dismiss an application under section 789FC if the FWC considers that the application might involve mattersthat relate to:

(a) Australia’s defence; or

(b) Australia’s national security; or

(c) …

Note: For another power of the FWC to dismiss applications under section 789FC, see section 587.

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.

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) ...

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

Consideration of the issues

[8] Under s.789FF of the Act the Commission has the discretion to make any order it considers appropriate (other than an order requiring the payment of a pecuniary amount) to prevent the worker from being bullied at work where it is satisfied that:

(i) the worker has been bullied at work; and

(ii) there is a risk that the worker will continue to be bullied at work.

[9] Section 789FE(2) of the Act sets out some of the circumstances in which the Commission may dismiss an application made under s.789FC of the Act. None of those circumstances exist in this case. However, the legislative note at s.789(2) of the Act states that: “[f]or another power of the FWC to dismiss applications under section 789FC, see section 587.”

[10] As can be seen above:

•  s.587(1)(c) of the Act provides that the Commission may dismiss an application if “the application has no reasonable prospects of success”; and

•  s.587(3)(a) of the Act states that the Commission may dismiss an application on its own initiative.

[11] The meaning and application of the phrase “no reasonable prospects of success” was canvassed by Deputy President Gostencnik in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank; Bianca Haines (ANZ) 1. In ANZ the applicant, Mr Shaw, was dismissed prior to his application under s.789FC of the Act being determined by the Commission. The implications of this were set out in Deputy President Gostencnik’s decision in the following terms:

“[16] ...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. I see no reason in the circumstances why I should not exercise my discretion to dismiss Mr Shaw’s application given my finding and I do so.” 2

[12] In circumstances where Mr Kennedy has discontinued his unfair dismissal application there is no prospect that he will be reinstated by the Commission to his former role with QGS. As such, absent Mr Kennedy being reemployed by QGS or Qantas, there is no risk that he will continue to be bullied at work at QGS. There is nothing before the Commission which would suggest otherwise. Against that background, I see no reason to depart from the approach adopted in ANZ. Accordingly, as foreshadowed in the above correspondence to Mr Kennedy, I propose to dismiss his bullying application.

Conclusion

[13] For the reasons outlined above I have decided to dismiss Mr Kennedy’s application on the basis that it has no reasonable prospects of success. An order to that effect will be issued in conjunction with this decision.

Printed by authority of the Commonwealth Government Printer

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 1   [2014] FWC 3408

 2   Ibid at [16]-[17]