Suresh Bhalla v Woolworths Group Limited; Sarina Thomas and another
[2023] FWC 14
•4 JANUARY 2023
| [2023] FWC 14 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Suresh Bhalla
v
Woolworths Group Limited; Sarina Thomas and another
(SO2022/219)
| DEPUTY PRESIDENT O’NEILL | MELBOURNE, 4 JANUARY 2023 |
Application to dismiss under s.587 – Applicant’s employment terminated - no risk of continued bullying – no reasonable prospects of success - application dismissed
Background
On 3 May 2022, Suresh Bhalla applied to the Commission for an order to stop bullying under s.789FC of the Fair Work Act 2009 (Cth) (Act).
A conference was held on 27 June 2022 where the matter did not resolve. The next day I issued directions for the filing of submissions and evidence however, these directions were stayed in light of Ms Bhalla’s application that I recuse myself. I refused Ms Bhalla’s recusal application as I was not satisfied that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the questions for determination.[1] Ms Bhalla subsequently lodged a notice of appeal on 16 August 2022.
Following the Full Bench’s decision declining to grant Ms Bhalla permission to appeal the recusal decision,[2] I issued further directions on 27 October 2022 and the substantive matter was set down for hearing on 21 December 2022.
On 5 December 2022, the Respondent applied for an order dismissing Ms Bhalla’s application for an order to stop bullying pursuant to s.587 of the Act. The basis upon which the order is sought is that Ms Bhalla’s application has no reasonable prospects of success because her employment with Woolworths was terminated on 22 November 2022. The Respondent contends that in circumstances where Ms Bhalla’s employment has been terminated and she will not be returning to the workplace, there is no risk that Ms Bhalla would continue to be bullied at work, and the Commission would not be able to make any orders in relation to the application.
Ms Bhalla opposes Woolworths’ application to dismiss on the basis that Woolworths has taken adverse action against her and the termination of her employment is “full of multifarious illegalities.” She has challenged her dismissal in a general protections application (C2022/8216) which is currently listed for staff conciliation on 17 January 2023. She submits that the remedy will be reinstatement and so her application for an order to stop bullying should be held in abeyance pending the outcome of her general protections application.
The hearing of the substantive matter has since been adjourned to deal with the Respondent’s application to dismiss under s.587. The parties consented to the application to dismiss being determined on the papers.
Consideration
Section 789FF(1)(b)(i) of the Act requires that the Commission be satisfied of two conditions before it may make an order to stop bullying. Firstly, the Commission must be satisfied that the worker has been bullied at work by an individual or group of individuals, and secondly, that there is a risk that the worker will continue to be bullied at work by the individual or group. Typically, an application for an order to stop bullying will have no reasonable prospects of success where the employee has been terminated by their employer. This includes in circumstances where there is a prospect that the termination may be disputed.[3]
A key authority on the application of s.789FF(1)(b)(i) in analogous circumstances is Mitchell Shaw v ANZ Banking Group Limited wherein Deputy President Gostencnik held: [4]
“[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.”
This position was affirmed by the Full Bench in Obatoki v Mallee Track Health & Community Services and Others[5] and in Atkinson v Killarney Properties Pty Ltd (‘Atkinson’).[6]
Ms Bhalla relies on two decisions, Application by Say Teong Ng and Application by Robyn Lee McGlone [7] to support her contention that her application should be held in abeyance rather than be dismissed under s.587. In Application by Ng, Hampton C discussed the cases referred to above, noting the caveat in the Atkinson:
“[35] 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 an employee.”
Hampton C noted that this caveat informs both the consideration of whether there is no reasonable prospect of success and the exercise of any discretion that arises:[8]
“[24] What all of this means is that the cessation of the employment or contractual relationship may provide a context in which the stop-bullying application has no reasonable prospects of success by virtue of the import of s.789FF(1)(b) of the FW Act. This is not a reflection upon the substantive merit (or otherwise) of that application (s.789FF(1)(b)(i)), but rather, consideration only of whether there is the absence of one of the (other) prerequisites for the making of any orders from such an application due to the fact that the applicant is no longer a worker at potential risk in the relevant workplace (s.789FF(1)(b)(ii)). However, in making that assessment the Commission must consider whether there is any other context in which the applicant might, as a worker, be subject to the risk of future workplace bullying conduct in the relevant workplace.
[25] Such a context could include where the applicant already has other work where they are likely to be involved in the relevant workplace in that capacity, or in my view, where there is some identifiable prospect that the applicant will return to the workplace as a worker as a result of some other intervention, such as a reinstatement order made by the Commission or by the Court. In that regard, this could well arise when an applicant had actually made a timely relevant application and was genuinely seeking that particular form of remedy. The prospect of these events occurring must certainly be something more than mere speculation; however, for reasons outlined above, the findings that there are no reasonable prospects of success is not a finding to be made lightly.
[26] Further, if there is a finding of no reasonable prospects, the dismissal of an application under s.587 of the FW Act remains a matter of discretion and each case must be considered on its merits.
[27] Accordingly, any attempts by an applicant worker to contest a dismissal or the cessation of the relationship are relevant; however in order to be more than speculation, the applicant would need to be genuinely and actively pursuing reinstatement as the remedy through some relevant application that had been made. This is relevant to the finding as to whether, or not, there are no reasonable prospects of success. Further, the impact upon other parties, including the individuals named in the application and the employer/principal are also relevant considerations in the case management of a stop-bullying matter including any decision to dismiss it on the grounds raised here. These latter considerations, and the fact that an applicant can make a fresh stop-bullying application should circumstances change, are relevant to the discretion, but not to the assessment of whether there are no reasonable prospects of success present in the extant application.”
In Application by McGlone, Hampton C adopted the same approach to the question of whether an application has ‘no reasonable prospect of success’ and similarly concluded that he was not so satisfied to the requisite degree.
Ms Bhalla also seeks to distinguish her case from the facts in Shaw and several other authorities.[9] While Ms Bhalla correctly points out that these cases bear some factual differences in relation to how the employment relationship ended, whether the termination was disputed and whether the applications were ultimately dismissed on the Commission’s own initiative or on application by the Respondent, the same circumstance that arises in all these cases is that the employment relationship ended after the application for an order to stop bullying was made, resulting in the same jurisdictional hurdle currently faced by Ms Bhalla.
Section 587(1) of the Act allows the Commission to dismiss an application if the application has no reasonable prospects of success. An application that may have had reasonable prospects of success at the time it was lodged may no longer have reasonable prospects of success as a result of changing circumstances.[10] The relevant circumstance that has changed since Ms Bhalla made her application on 3 May 2022 is that she is no longer employed by Woolworths.
Even if I was to find that the conduct alleged by Ms Bhalla occurred, and that this conduct constitutes bullying within the meaning of s.789FD, and that the conduct is not reasonable management action carried out in a reasonable manner,[11] the Commission can only make an order to stop bullying if it is also satisfied that there is a risk that Ms Bhalla will continue to be bullied at work by an individual or group. Ms Bhalla is no longer employed by Woolworths and is no longer in the workplace. Ms Bhalla does not presently face a risk that she will continue to be bullied at work. Therefore, one of the pre-conditions to s.789FF(1)(b)(i) is not satisfied and the Commission is unable to make any orders in relation to the application to stop bullying.
Ms Bhalla submits that her application should be held in abeyance pending the outcome of her general protections application and the fact a conciliation conference has been listed “reflects the certainty and proven chances of reinstatement.”[12] While in some circumstances it may not be appropriate to dismiss an application brought under s.789FC where the employee has been dismissed from their employment, I am not satisfied that any such circumstances exist in relation to Ms Bhalla’s application.
Unlike the circumstances in both Application by Ng and Application by McGlone, Ms Bhalla has not elected to make an unfair dismissal application. In both of those cases, the unfair dismissal application was to be dealt with by the Commission within a relatively short period of time. As Ms Bhalla has made a general protections application, unless Woolworths agrees to reinstate Ms Bhalla, the matter will ultimately be determined by a court. The Respondent’s submissions make clear that it does not agree to reinstate Ms Bhalla and submits there is no prospect of her returning to the workplace whether as an employee or in another work capacity.[13] The hearing and determination by a court is likely to take a considerable period of time and is a contextual consideration that fortifies my assessment at this time that Ms Bhalla’s stop-bullying application has no reasonable prospects of success.
While it is open to me to hold the current application until after the general protections application is determined, I do not consider it appropriate to do so. I consider the prospects of Ms Bhalla being reinstated to her original position with Woolworths by agreement to be remote and the prospect of the court ordering reinstatement to be speculative and uncertain. I consider the fact that Ms Bhalla can make a fresh stop-bullying application should circumstances change, and the negative impact upon the Respondent and especially the individual persons named in the application, of holding the matter in abeyance for what may be a considerable period of time, are relevant considerations in the exercise of my discretion to grant the Respondent’s application under s.587 to dismiss Ms Bhalla’s stop-bullying application.
As there is no power for me to make an order to stop bullying under s.789FF(1), I consider that the application has no reasonable prospects of success and that it is appropriate for me to exercise my discretion under s.587(1)(c) to dismiss Ms Bhalla’s application. It should be noted that my decision to dismiss her application for an order to stop bullying would not prevent her from bringing a future claim, should the necessary jurisdictional facts be established in relation to that application.[14]
Ms Bhalla’s application for an order to stop bullying is dismissed. An Order to that effect will be separately issued.
DEPUTY PRESIDENT
Final written submissions:
Applicant, 19 December 2022
Respondent, 12 December 2022
[1] See Application by Suresh Bhalla [2022] FWC 2039.
[2] See Suresh Bhalla v Woolworths Group Limited, Sarina Thomas and Others[2022] FWCFB 195.
[3] Mitchell Shaw v ANZ Banking Group Limited; Bianca Haines[2014] FWC 3408 (‘Shaw’).
[4] Shaw at [15]-[17].
[5] [2015] FWCFB 1661 at [16]
[6] [2015] FWCFB 6503 at [35].
[7] [2019] FWC 3055 and [2019] FWC 7275.
[8] [2019] FWC 3055 at [20], [24]-[27].
[9] Application by Natalie Brenton [2014] FWC 4166; Application by M T [2014] FWC 3852; Tara Briggs v Kelsey Pettersen, G8 Education Ltd T/A Kindy Patch West Ipswich [2021] FWC 6650; Tanya Stefanidakis v D&M Plant Hire; Ray Phillips and another [2020] 4868.
[10] Joe Cai v Serco Citizen Services Pty Ltd; Christopher Maassen [2022] FWC 3162 at [11].
[11] s.789FD(2).
[12] Applicant’s outline of submissions.
[13] Respondent’s outline of submissions at [11].
[14] Shaw at [17].
Printed by authority of the Commonwealth Government Printer
<PR749377>
0
0