Sonja Gasser

[2020] FWC 1451

[2020] FWC 1451

FAIR WORK COMMISSION

DECISION

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

Sonja Gasser
(AB2019/281)

DEPUTY PRESIDENT CLANCY MELBOURNE, 18 MARCH 2020

Application for an FWC order to stop bullying - whether application for order has no reasonable prospect of success - application to dismiss granted.

[1] In making application to the Fair Work Commission on 27 May 2019, Ms Sonja Gasser (the Applicant) sought an order to stop bullying pursuant to s.789FC of the Fair Work Act2009 (the FW Act). The Applicant alleges that she was bullied at work by a colleague during her employment with HSE Mining Pty Ltd (the Respondent).

Background

[2] The Applicant’s employment was terminated by the Respondent on 17 May 2019.

[3] On 27 May 2019, the Applicant made two applications to the Commission. There was the anti-bullying application referred to above, plus an application pursuant to s.394(1) of the FW Act for an unfair dismissal remedy (the unfair dismissal application).

[4] The anti-bullying application was initially allocated to Commissioner Hampton. At a tele-conference which took place on 15 July 2019, the anti-bullying application was adjourned by consent of the parties pending the outcome of the unfair dismissal claim, with the parties having liberty to apply at any time to seek a relisting to deal with jurisdictional issues that had been raised. At that time, the unfair dismissal application was at an early stage and had not yet been conciliated.

[5] Eventually, a conciliation for the unfair dismissal application took place but this did not resolve that case. A Mention was then conducted and directions were made for the filing and service of material. Some delay has since ensued. It appears the Applicant has been slow to complete the preparation of her material and has latterly been unresponsive in the face of enquiries as to her availability for a hearing.

[6] On 10 February 2020, the anti-bullying application was allocated to me. I reviewed the file and noted the status of the unfair dismissal application. On 3 March 2020, I caused an email to be sent to the parties. I sought to draw the attention of the parties to the nature of the Commission’s jurisdiction to deal with allegations of workplace bullying. In particular, I outlined that the Commission only has jurisdiction to make an order to stop bullying at work if it is satisfied there is a risk that the worker will continue to be bullied at work. I sought the views of the parties in relation to whether the Applicant’s anti-bullying application should be dismissed pursuant to s.587 of the FW Act on the basis that it has no reasonable prospect of success, given that the Applicant is no longer employed by the Respondent and there is currently no risk that she will continue to be bullied at work there.

[7] The parties were requested to provide their views in writing by 4.00pm on Friday, 13 March 2020.

[8] At 12.21pm on 13 March 2020, the Respondent filed its response, stating that the Applicant’s employment was terminated as of 17 May 2019 and that she has not returned to the workplace since. The Respondent denies that any bullying of the Applicant took place as alleged, or at all, and submitted:

•  there can be no risk that the Applicant would be exposed to any potential bullying at work with it;

•  the Commission therefore has no power to make any order sought by the Applicant; and as such

•  the Applicant’s anti-bullying application has no reasonable prospect of success and must be dismissed for want of jurisdiction.

[9] The Applicant has not replied to my email of 3 March 2020 or responded to the email of the Respondent.

[10] The unfair dismissal application has yet to have been heard yet by the Commission and no hearing date has been set.

Consideration

[11] The relevant remedy in respect of applications for an order to stop bullying is an order which the Commission considers appropriate “to prevent the worker from being bullied at work by the individual or group”. 1 The discretion to make an order to stop bullying is only exercisable if the Commission is satisfied that:

•  the worker has been bullied at work by an individual or a group of individuals; and

•  there is a risk that the worker will continue to be bullied at work by the individual or group. 2 (my emphasis)

[12] The FW Act requires the Commission to be satisfied of the first limb outlined above, and if so, the Commission must also be satisfied there is a risk that the worker will “continue” to be bullied “at work” by the individual or group responsible for the bullying.

[13] Therefore, in this case, if I was satisfied that the Applicant has been bullied at work by an individual, or group of individuals, the relevant enquiry then shifts to whether there is a risk that she will continue to be bullied at work by the individual or group of individuals.

[14] In Shaw v Australian and New Zealand Banking Group Limited T/A ANZ Bank; Bianca Haines (Shaw), 3 which involved an employee who had been dismissed, Deputy President Gostencnik found as follows:

“[15]As s. 789FF(b) makes clear, I must be satisfied not only that Mr Shaw has been bullied at work by an individual or group of individuals but also that there is a risk that he will continue to be bullied at work by that individual or group of individuals. Therein lays the difficulty for Mr Shaw. It seems to me that I have no power to make an order to stop bullying unless I can be satisfied relevantly that there is a risk that at work Mr Shaw will continue to be bullied by the individual or group of individuals identified in his application.

[16]It is clear that Mr Shaw is no longer employed by ANZ. The employment relationship has ended. That Mr Shaw is taking steps to seek a remedy in relation to his dismissal and that that may result in reinstatement at some point in the future does not have a bearing on the question that I must answer and is speculative and uncertain. 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... I would observe that, if as a consequence of Mr Shaw’s general protections application or any other remedy that he seeks, he is reinstated to his former position or another position with ANZ and at that point he has concerns about a risk of being bullied at work, it seems to me, and the ANZ seem to accept that he will be at liberty to make a fresh application at that time. That he has made this application and that it has been dismissed will not operate as a bar to any future application if the jurisdictional facts can be established in relation to that application.” 4

[15] In G.C., 5 Commissioner Hampton referred to Shaw and stated:

“[166] With respect, I agree with the Deputy President that the import of s.789FF(1)(b)(ii) is that for an order to be made, the Commission must be satisfied that there is a risk that the (applicant) worker will continue to be bullied at work by the individual or group (found to have bullied the applicant). For my part, where an applicant will no longer be at work with the relevant individual or group, and there is no reasonable prospect of that occurring in some capacity as a worker in the future, in almost all cases it will not be possible for an applicant to demonstrate the future risk requirement. This requires a consideration of the particular circumstances of the parties including the potential to return to the workplace in some capacity as a worker.” 6 (emphasis in original)

[16] Obatoki v Mallee Track Health Community Services and Others 7(Obatoki)concerned a case where the services of the applicant in that case had been terminated and he was no longer working for the respondent. In that context, the Full Bench of the Commission found:

“[16]We consider that the Deputy President correctly held that there were no reasonable prospects that the application could succeed. The Commission could not be satisfied that the second of the two jurisdictional prerequisites of s.789FF(1) could be met. There was no evidence before the Commission indicating that there would be a risk that the Appellant would continue to be bullied at work once he ceased to be engaged by Mallee Track and ceased working at its premises or providing services for it. It necessarily follows that no order pursuant to s.789FF(1) could be made and the application had no reasonable prospects of success.

[17]It is worth noting, as did the Deputy President in the decision below, that there is nothing to preclude the Appellant, should he return to work at Mallee Track at some future point, from making another application under s.789FC subject to the jurisdictional facts being established in relation to that application.” 8 (references omitted)

[17] In Atkinson v Killarney Properties Pty Ltd T/A Perm-A-Pleat Schoolwear and Others, 9the Full Bench was not persuaded that Shaw and Obatoki were wrongly decided and held that it had been open to the Commission at first instance to determine that the anti-bullying application of the worker, who had been terminated after it had been lodged, be dismissed on the basis that it had no reasonable prospects of success. The Full Bench also stated:

“In this decision, we are not suggesting that it will always be appropriate for the FWC to dismiss a s.789FC application where an employee is dismissed from their employment. Depending on the circumstances in each case there may be a number of relevant considerations, including the prospect of reinstatement through other proceedings, which could warrant the FWC dealing with a s.789FC application notwithstanding the dismissal of the employee.” 10

[18] In Willis v Capital Radiology Pty Ltd T/A Capital Radiology; Ms Peita Carroll; Ms Marie Gibson; Mr Dominik Kucera 11 (Willis), Deputy President Gostencnik dealt with another application for an order to stop bullying in circumstances where the applicant had been summarily dismissed and had commenced an adverse action claim in the Federal Circuit Court of Australia in relation to his dismissal. In granting the respondent’s application for the dismissal of the anti-bullying application pursuant to s.587(1) of the FW Act, the Deputy President concluded:

“[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.

[21] An adjournment for a period that is both lengthy and presently indeterminate is also not conducive to the efficient administration of justice. Cases of this kind should be determined with reasonable expedition. Certainly, the legislature had this in mind by mandating that the Commission start dealing with such an application within 14 days after the application is made. Moreover, in the event that the Applicant succeeds before the Federal Circuit Court and he is reinstated, he is free to make another application if he believes there is a risk of continued bullying and it seems to me, there is nothing to prevent the Applicant relying on the conduct currently alleged in this application to make good the other jurisdictional fact requirements. As such, no real prejudice is suffered by the Applicant, and there will be no material delay in dealing with a new application on that basis when compared to the delay in determining this application if it were adjourned, pending the hearing and determination of the Federal Circuit Court proceeding.

[22] I am therefore of the opinion that the application for dismissal of the Applicant’s application for an order under s.789FF should be granted…” 12 (references omitted)

[19] In Willis, Deputy President Gostencnik helpfully discussed the Commission’s discretionary power under s.587 of the FW Act in the context of an anti-bullying application, with reference to Spencer v The Commonwealth, 13 and his observations, in my view, included:

•  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; 14

•  the circumstances in which the phrase “has no reasonable prospect of success” might apply should not be confined to those that are frivolous, untenable, groundless or faulty. Full expression should be given to the phrase; 15

•  the answer to the question whether a particular application has no reasonable prospect of success in the context of s.587 of the FW Act may differ depending on the time at which the question is asked. As such, while an application at its inception may have some reasonable prospect of success, if circumstances change during the course of dealing with it, it might no longer have a reasonable prospect of success; 16 and

•  in assessing whether “the application” for an order under s.789FF of the FW Act “has no reasonable prospects of success”, it is necessary to consider whether each of the preconditions for the making of an order under that section might be able to be made out. 17

[20] I have had regard to these cases and principles. In determining whether the Applicant’s anti-bullying application has no reasonable prospect of success, I am required to assess whether there is some reasonable prospect that the Applicant will be able to persuade me to make an order under s.789FF of the FW Act, having regard to matters as they currently stand.

Section 789FF(1)(a) of the FW Act

[21] Clearly, the Applicant has made an application under s.789FC of the FW Act. This is the first matter about which I must be satisfied before considering whether to exercise my discretion to make an order to stop bullying.

Section 789FF(1)(b)(i) of the FW Act

[22] The next matter about which I must be satisfied is whether the Applicant has been bullied at work by an individual or a group of individuals. This is disputed by the Respondent, but if I was to assume for the purposes of considering whether I should dismiss the anti-bullying application, that the Applicant would be able to satisfy me that she was bullied at work, two of the three prerequisites in s.789FF(1) of the FW Act for the making of an order would be satisfied.

Section 789FF(1)(b)(ii) of the FW Act

[23] As s.789FF(1)(b)(ii) of the FW Act makes clear, I must also be satisfied that there is a risk that the Applicant will continue to be bullied at work by an individual or group of individuals. As was stated in Willis, “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” 18 to stop bullying and each case turns on its own facts.19

[24] The Applicant’s employment with the Respondent has been terminated. As things currently stand, the Applicant is no longer employed or at work and it cannot presently be concluded that there is a risk that she will continue to be bullied at work. This has been the case for ten months since 17 May 2019 and continues to be the case as at the date of this decision. The Applicant’s unfair dismissal application is still unresolved and a hearing date has not yet been set. Any return to work, if that is what the Applicant ultimately seeks, is conditional on a number of factors and not guaranteed.

[25] For example, while the FW Act gives the Commission the power to make an order for reinstatement under certain circumstances in an unfair dismissal application, it may be resisted and the ultimate conclusion of the Commission may be that reinstatement is inappropriate. 20 Therefore, as things currently stand, there cannot be a risk that the Applicant will continue to be bullied “at work” with the Respondent.

[26] I am therefore satisfied I do not currently have the 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.789FC of the FW Act has no reasonable prospect of success.

[27] It has not been proposed by either party, and nor do I consider it appropriate, to proceed at this time to hear and determine whether the Applicant has been bullied at work. If I were to adopt this course, and the unfair dismissal application was not subsequently resolved in the Applicant’s favour with reinstatement as the outcome, the resources of the parties would have been unnecessarily expended.

[28] Further, I do not consider that the continued adjournment of the anti-bullying application for a further, indeterminate period pending the resolution of the unfair dismissal application is conducive to the efficient administration of justice. The adjournment has already been lengthy. It is continuing. In this regard, I have considered what was said in Willis:

“Cases of this kind should be determined with reasonable expedition. Certainly, the legislature had this in mind by mandating that the Commission start dealing with such an application within 14 days after the application is made.” 21

[29] In addition to not engaging with the Commission’s correspondence regarding the unfair dismissal application, the Applicant has not engaged with my recent correspondence. In the absence of any explanation as to why, I am left to infer she is not currently motivated to pursue her anti-bullying application. Should the Applicant eventually succeed in securing reinstatement through her unfair dismissal application and at that point still holds the concern that there is a risk of continued bullying at work, she will be free to make another anti-bullying application. Indeed, there is no bar to her making a fresh application and nor will she be prevented from relying on the allegations she has made in this anti-bullying application to make good the requirement in s.789FF(1)(b)(i) of the FW Act. I have considered the views expressed in Shaw, 22 Obatoki23 and Willis24 in this regard.

[30] I am also satisfied the Applicant will not suffer any real prejudice if this current anti-bullying application is dismissed. There will be no material delay in dealing with a new anti-bullying application when compared to the continuing delay in determining this anti-bullying application, if the current adjournment pending the hearing and determination of the Applicant’s unfair dismissal proceeding, which I note is no longer consented to by the Respondent, was to continue.

[31] I am therefore persuaded it is appropriate in the circumstances of this case to exercise my discretion to grant the application that has now been made by the Respondent that the Applicant’s anti-bullying application be dismissed pursuant to s.587 of the FW Act, 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.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR717603>

 1   Fair Work Act 2009 (Cth) s.789FF.

 2   Fair Work Act 2009 (Cth) ss.789FF(1)(b)(i) and (ii).

 3   [2014] FWC 3408.

 4   Ibid at [15]-[17].

 5   [2014] FWC 6988.

 6 Ibid at [166].

 7   [2015] FWCFB 1661

 8   Ibid at [16]-[17].

 9   [2015] FWCFB 6503.

 10 Ibid at [35].

 11   [2016] FWC 716.

 12   Ibid at [19]-[22].

 13 (2010) 241 CLR 118.

 14   [2016] FWC 716 at [7].

 15 Ibid at [9].

 16 Ibid at [10].

 17 Ibid at [11].

 18 Ibid at [15].

 19 Ibid at [19].

 20   Fair Work Act 2009 (Cth) s.390(3).

 21   [2016] FWC 716 at [21].

 22   [2014] FWC 3408 at [17].

 23   [2015] FWCFB 1661 at [17].

 24   [2016] FWC 716 at [21].