Sean De Zylva

[2019] FWC 3204

[2019] FWC 3204

FAIR WORK COMMISSION

DECISION

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

Sean De Zylva
(AB2018/662)

COMMISSIONER WILSON MELBOURNE, 9 MAY 2019

Application for an FWC order to stop bullying – no prospect of success – application dismissed.

[1] On 23 October 2018, Mr Sean De Zyla made an application to the Fair Work Commission for an order to stop bullying, pursuant to s.789FC of the Fair Work Act 2009 (the Act) against a person named, Tony Russo, the Managing Director and Dealer Principal of his employer Canso Pty Ltd, trading as Preston Nissan.

[2] The application was the subject of two conferences before me on 11 and 14 December 2018 which did not resolve the dispute. Mr De Zylva was advised by me to continue to discuss settlement of the matter between the parties and where that failed to seek advice as to how to proceed and advise the Commission accordingly.

[3] On 17 December 2018, Mr De Zylva provided the Commission with medical documentation advising that he may be uncontactable.

[4] On 19 December 2018, the Commission contacted Mr De Zylva by phone who advised that he had sought legal advice and wished to proceed to hearing. A follow up email confirming this and providing McDonald Muholme as his legal representatives was provided by Mr De Zylva the same day.

[5] On 19 December 2019 the Commission was copied into an email between the Applicant’s representative McDonald Murholme and the Respondent regarding settlement of the matter. However, the following day on 20 December 2019 the Commission received an email from Mr De Zylva advising that settlement discussions had failed.

[6] On 11 January the Commission received an email from the Respondent indicating that settlement negotiations had failed and that the Respondent had engaged legal representation also.

[7] On 12 January 2019 the Commission was copied into correspondence from the Mr De Zylva to the Respondent seeking confirmation that he was still employed by the Respondent and the balance of any leave entitlements.

[8] On 14 January 2019 the Commission wrote to Mr De Zylva to confirm whether he continued to seek a hearing of the matter, noting the limitations of the Commission’s jurisdiction should the Applicant not return to work.

[9] On 15 January 2019 the Respondent confirmed by email that Mr De Zylva continued to be employed by the Respondent however, that he had no further paid leave.

[10] On 21 January 2019, Mr De Zylva advised the Commission by email that he wished to proceed to hearing. Directions were therefore issued with the Applicant due to file a draft order, outline of submissions and any witness statements and documents by 22 February 2019.

[11] On 22 February 2019, the Applicant sought an extension to file due to ill health, as such the directions for the Applicant to file were extended until 1 March 2019.

[12] On 6 March 2019, Mr De Zylva was contacted by email regarding his overdue submissions directing him to file his materials immediately.

[13] On 18 March 2019, the Commission wrote to parties advising that as a result of the Mr De Zylva’s failure to file that the hearing dates were vacated. The Applicant was again asked to file immediately or alternatively discontinue the application by 22 March 2019.

[14] On 30 April 2019 the Commission called Mr De Zylva by telephone to follow up on his application however, no contact was made. A voice message was left requesting a call back.

[15] The Applicant has neither responded to the Commission nor filed any materials.

Legislation

[16] The Act’s provisions in relation to anti-bullying are contained within Part 6-4B—Workers bullied at work, with s.789FD setting out the circumstances of when a worker is bullied at work:

“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.”

[17] Section 789FF sets out the powers of the Commission to make orders in the event that it is satisfied there is bullying at work:

“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.”

[18] Section 587 of the Act provides a discretion to dismiss an application if, inter alia, the application has no reasonable prospect of success. Without traversing the authorities that have considered the proper application and meaning of the phrase, ‘no reasonable prospect of success’, it is sufficient to make the following observations. Section 587, in its entirety, provides as follows:

“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.”

Consideration

[19] 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.

[20] In Spencer v The Commonwealth of Australia, 1 consideration was given to 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 the plurality (Hayne, Crennan, Kiefel and Bell JJ) 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.’ 2 

[21] In the circumstances of this matter, given there is no evidence before the Commission to satisfy the criteria under s.789FD of the Act I am persuaded to exercise my discretion pursuant to s.587(1)(c) of the Act to dismiss the Applicant’s anti-bullying application on the basis that it has no reasonable prospects of success. An order dismissing the Applicant’s anti-bullying application will be issued along with this decision. 

COMMISSIONER

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 1 (2010) 241 CLR 181.

 2   Ibid at [59] – [60].