Shamir v Australian Taxation Office

[2015] FWC 5561

[2015] FWC 5561

FAIR WORK COMMISSION

DECISION

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

Shamir
v
Australian Taxation Office and others
(AB2015/176)

COMMISSIONER ROE MELBOURNE, 13 AUGUST 2015

Application for an FWC order to stop bullying.

[1] This matter was the subject of unsuccessful conciliation and was listed for hearing. Extensive material had been provided by the parties in anticipation of the hearing. Mr Shamir was dismissed from his employment with the Australian Taxation Office on 19 June 2015. The dismissal was not proceeded with because of an undertaking given by the Australian Taxation Office in Federal Court proceedings. However, consent orders were made on 24 July 2015 ending the Federal Court proceedings and confirming that the termination of Mr Shamir's employment took effect from that date. 

[2] I gave the parties the opportunity to make written submissions about what I should now do in respect to the application before the Fair Work Commission. I advised the parties that I would determine the matter on the basis of those submissions provided that there were no contested facts. I am satisfied that there are no contested facts. 

[3] Mr Shamir submits that he intends to make an unfair dismissal application prior to 14 August 2015 and that he intends through that application to seek reinstatement. He says that if he is reinstated there is a risk of further bullying at work if the Fair Work Commission makes an order for his reinstatement pursuant to Section 390. He submits as follows:

"I rely on the decision in P.K [2015] FWC 562 in which Commissioner Hampton said at [26]

"It is prudent to consider whether there is any reasonable prospect of a relevant risk arising in the future."

I believe there is a reasonable prospect of the risk of bullying arising in the future if I am reinstated and if I am reinstated into the same position as an auditor in the Serious Evasion area of the Indirect Tax business line, reporting to (names omitted).

At [32], Commissioner Hampton said that in some circumstances it:

"may be appropriate for the Commission to consider holding an AB application in abeyance where there is an apparently related dismissal that is being actively contested"."

[4] The ATO submits as follows:

"The ATO considers that the FWC should dismiss the anti-bullying application on the basis that Mr Shamir’s concerns rest on too many uncertainties to warrant the indefinite maintenance of the anti-bullying application.”

[5] The ATO’s position is that:

• “If Mr Shamir does proceed with an unfair dismissal application; and



• If he succeeds with that application; and



• If he does secure an order for reinstatement; and



• If that order reinstates him to his former role; and



• If that results in Mr Shamir once again working with (names omitted); and



• If at that point Mr Shamir perceives that he is once again at risk of bullying,

Then Mr Shamir can simply make another anti-bullying application, providing to the Fair Work Commission information that is relevant to whatever situation he finds himself in. He would suffer no prejudice by having this matter dismissed, as he would be free to make another anti-bullying application in the future if his circumstances warranted."

[6] The circumstances in this case can be distinguished from one where the termination of employment takes place soon after the stop bullying application is made. In those circumstances there may be a concern that the termination is in part to avoid the stop bullying application proceeding. In those circumstances to hold the bullying application in abeyance until the unfair dismissal application is determined may well be appropriate as suggested by Commissioner Hampton. However, in the circumstances of this case the stop bullying application had been on foot for some considerable period of time. The matter had been the subject of conciliation and the parties had prepared material for the scheduled hearing. The reasons given for the termination of employment relate to alleged conduct by Mr Shamir which occurred long after the stop bullying order was made and shortly prior to the hearing of the matter. In these circumstances I agree with the ATO that it would be inappropriate to keep the file open in the event that a number of uncertain events were to eventuate. I make no judgement about the merits of Mr Shamir's potential unfair dismissal application. 

[7] I agree with the ATO that there is nothing to stop Mr Shamir from submitting a new application if:

● Mr Shamir does proceed with an unfair dismissal application; and
● He succeeds with that application; and
● He does secure an order for reinstatement; and
● That order reinstates him to his former role; and
● That results in Mr Shamir once again working with the persons whom he alleged had engaged in bullying behaviour; and
● At that point Mr Shamir perceives that he is once again at risk of bullying.

[8] The circumstances surrounding Mr Shamir's case will have significantly changed if that situation is reached. Attitudes on both sides will be significantly affected by that series of events and by the proceedings and by a finding by the Fair Work Commission that reinstatement to the former role is appropriate. It will of course be open to Mr Shamir to re-submit the material he has submitted in this case in any new application. That will avoid inconvenience and cost. However, given the changed circumstances it would be both necessary and appropriate for there to be a conciliation conference and both parties may wish to provide new relevant material. 

[9] In the circumstances I have decided not to further adjourn the scheduled hearing of this matter. I had previously agreed to adjourn the scheduled hearing because Mr Shamir sought time to deal with a show cause letter from the ATO and then again because of the Federal Court proceedings. I do not consider that further adjournment is appropriate.  

[10] I am therefore satisfied that because of the dismissal there is no longer any risk of Mr Shamir being bullied at work. It follows that the Fair Work Commission does not have the power to make any order to stop bullying in connection with his employment with the ATO. I am therefore satisfied that the application has no reasonable prospects of success and should be dismissed. I dismiss the application. 

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code A, PR570778>