Shane Richardson

[2016] FWC 6622

[2016] FWC 6622

FAIR WORK COMMISSION

DECISION

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

Shane Richardson
(AB2015/546)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 14 SEPTEMBER 2016

Application for an FWC order to stop bullying.

[1] On 4 September 2015 Mr Shane Richardson (the Applicant) lodged an application for an order to stop bullying pursuant to s.789FC of the Fair Work Act 009 (the Act).

[2] The employer is Impact Care Solutions Ltd T/A Impact Youth Services (the Employer) which is a youth welfare organisation operating in the western suburbs of Sydney.

[3] The Applicant was employed to manage a residential care facility for youth in the out-of-home care system for the Employer which runs it on behalf of the New South Wales Department of Family and Community Services.

[4] The Applicant complained of bullying by Mr Patrick Gosselin, the Chief Executive Officer of the Employer and Ms Deb Munro, the General Manager.

[5] The Applicant says that he alerted both Mr Gosselin and Ms Munro to certain issues and dangers for the youth residents. He also complained about excessive workload and the actions of some other staff.

[6] As a result he says that he was the subject of verbal harassment, unwarranted criticism by management and general discrimination in the workplace. It is alleged that this conduct has had a significant effect on the Applicant’s health and safety. The Applicant has been absent from work on leave since before the application was lodged. It appears that his workers compensation claim has been accepted.

[7] The F73 responses were lodged by Mr Gosselin and Ms Munro. They deny that there has been any bullying conduct or any complaint about bullying conduct. To the extent that the Applicant complained about some activities/issues within the Employer’s operations, they should be directed elsewhere. None of the issues raised constitute bullying against the Applicant. It is submitted that all of the issues raised by the Applicant have been dealt with appropriately. Finally, it is submitted that the Applicant has been treated with leniency over the years in relation to a number of performance issues which is inconsistent with bullying conduct by management representatives.

[8] Copies of the employer’s various policies and procedures for dealing with issues in the workplace were provided by Mr Gosselin.

Commission Proceedings

[9] The matter was listed for telephone mediation on 21 October 2015, but the Applicant provided a medical certificate that he was unfit to participate.

[10] Commissioner Hampton, the panel head, attempted to hold two further telephone mediations, on 30 November and 1 December 2015. There was no appearance by the Applicant.

[11] The matter was then allocated to me and listed for a conference on 2 February 2016. Mr Gosselin and Ms Munro appeared but there was no appearance by the Applicant.

[12] It was listed again for 10 March 2016. The Applicant’s clinical psychologies provided a medical certificate that he was unable to participate, prior to the scheduled conference.

[13] It was rescheduled for 23 May but the same correspondence was received from the clinical psychologist. The Applicant also sent an email to Chambers on 20 May which largely dealt with his medical issues.

[14] The matter was listed for a further conference on 16 August 2016. However, on 9 August 2016, the Employer applied to have the matter dismissed.

[15] This application was based on the following:

● The Applicant has failed to appear six times at Commission proceedings;
● Ms Munro, one of the alleged bullies, no longer works for the Employer;
● If and when the Applicant returns he will not be supervised directly by Mr Gosselin.

[16] The scheduled 16 August conference was turned into a hearing.

[17] Mr Gosselin and the Employer’s new Human Resource Manger attended. The Applicant sent an email on 12 August which attached a certificate from his doctor. The Applicant mainly dealt with his medical condition and sought more time to deal with the matter.

Relevant Legislation

[18] The relevant aspects of the anti-bullying legislation are:

“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.”

and:

“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.”

[19] Section 587 is also relevant:

“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.

(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

[20] At the hearing the Employer pressed its application to dismiss on the basis of the Applicant’s failure to properly pursue his claim for over 12 months. During this time he has been on leave and a workers compensation claim has been lodged with payments being made to the Applicant. It was also submitted that neither the application nor any communication from the Applicant discloses any allegation that could be considered bullying conduct. All that could be identified were some management decisions that the Applicant did not appear to agree with.

[21] The Employer submits that there is no prospect of the Applicant returning to work in the foreseeable future. It appears that he would not be able to return to work with this employer under the terms of the workers compensation certificate. In any event one of the alleged bullies has left the Employer and taken another job.

[22] On 30 August I sent a letter to the Applicant together with a copy of the transcript from the hearing. The Applicant was requested to make a written submission if he wished.

[23] The Applicant responded on 1 September 2016. He re-stated some of the allegations made in his application.

[24] The Commission has now decided on a number of occasions that where there is no risk that the employee will continue to be bullied at work the matter should be dismissed for want of jurisdiction. Most of these cases have been where the Applicant has been dismissed, see Shaw v Australian and New Zealand Banking Group Limited, Bianca Haines [2014] FWC 3408, Mr MT [2014] FWC 3852, Ms Benton [2014] FWC 4166.

[25] In James Willisv Capital Radiology Pty Ltd T/A Capital Radiology; Ms Peita Carroll; Ms Marie Gibson; Mr Dominik Kucera[2016] FWC 716 Deputy President Gostencnik stated:

“[15] However, as s.789FF(1)(b) makes clear, I must also be satisfied that there is a risk that the Applicant will continue to be bullied at work by that individual or group of individuals. Without satisfaction of the existence of a risk of continued bullying at work of the applicant by the individual or group there is an absence of power to make an order.

[16] As the Applicant has been dismissed and is no longer employed by Capital Radiology it cannot now be concluded that there is a risk that the Applicant will continue to be bullied at work by the individual or group. There is no real risk of that eventuality. That has been the case since 14 July 2015 and continues to be the case as at the date of this decision.

[17] The Applicant is taking steps to seek a remedy in relation to his dismissal by Capital Radiology and that may, if he succeeds, result in reinstatement at some point in the future. However, that case will not be heard by the Federal Circuit Court until September 2016 with a decision still later in time. As things presently stand (and would stand if I were to hear and determine this matter over the next few months) the prospect of the Applicant being ‘at work’ with Capital Radiology is speculative or hypothetical, as is the risk of continued bullying at work of the Applicant by the individual or group. As a matter of fact, the Applicant is not and will not be at work with Capital Radiology. There cannot therefore be a risk that the Applicant will continue to be bullied at work by an individual or group of individuals as identified in his application, because he is no longer employed by Capital Radiology and is no longer at work. That position will pertain for the foreseeable future.

[18] It necessarily follows that I do not have power to make an order to stop bullying and, as a consequence, I am satisfied that the Applicant’s application for an order under s.789FF has no reasonable prospect of success.

[19] Each case of this kind will turn on its own peculiar facts. It should not be assumed that it will always be appropriate to dismiss an application for an order under s.789FF because the worker has been dismissed. In some circumstances it may be appropriate to adjourn a proceeding instead of dismissing it or to proceed with determining the other preconditions in s.789FF before considering the question of risk of continued bullying at work.

[20] I have given consideration to both these possible courses of action but I have
concluded that neither course is appropriate in the present circumstances. If I were to proceed to determine the matter, I would likely face the same question concerning risk in a few months. At that point the conclusion would be the same. The efficient administration of justice is not served by this course and resources of the parties would be unnecessarily expended.”

[26] As well, in Lisa Fasadni [2016] FWC 1286 I decided to dismiss the application, where the Applicant was not at work and all of the alleged bullies had left the employer, for want of jurisdiction.

[27] In this case, the Applicant has not been at work for 12 months. It appears that if he does return to work it will not be with this employer. Even if he did return to this employer, alternative supervision arrangements have been put in place.

[28] Finally, I note that the Applicant has taken no steps to prosecute his claim by appearing at the various Commission proceedings that have been scheduled over the last year.

[29] Accordingly, I find that there is no risk that the Applicant will continue to be bullied at work. The matter has no reasonable prospects of success and must be dismissed for want of jurisdiction to make an order under s.789FF.

[30] Pursuant to s.587(b) of the Act the application is dismissed and I so order. An Order [PR585423] to that effect accompanies this decision.

DEPUTY PRESIDENT

Appearances:

P. Gosselin with J. Curryer for the Impact Care Solutions Ltd.

Hearing details:

2016

Sydney:

February 2, Conference;

March 10, Conference;

August 16, Hearing.

Final written submissions:

Applicant:

September 1.

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