Tanya Stefanidakis v D & M Plant Hire

[2020] FWC 4868

[2020] FWC 4868

FAIR WORK COMMISSION

DECISION

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

Tanya Stefanidakis
v
D & M Plant Hire; Ray Phillips; Noel Jones
(AB2020/330)

COMMISSIONER BOOTH BRISBANE, 10 SEPTEMBER 2020

Application for an FWC order to stop bullying - application dismissed under s.587 of the Fair Work Act 2009.

[1] On 18 May 2020, Ms Tanya Stefanidakis (the Applicant) lodged an application for an order to stop bullying under s.789FC of the Fair Work Act 2009 (the Act). The applicant alleged that she was bullied in her workplace, D&M Plant Hire (the Employer Principal), by Mr Ray Phillips and Mr Noel Joels (the Persons Named), and sought orders that the bullying be stopped.

[2] The matter was allocated to my Chambers for consideration and was set down for conference on 25 June 2020. On 24 June 2020, the Applicant advised my Chambers by way of email that she was unable to attend the conference and sought an adjournment of the matter for personal reasons. I adjourned the conference.

[3] On 9 July 2020, I instructed my Chambers to seek an update from the Applicant. As no response was received from the Applicant by 13 July 2020, by way of email, I invited the Applicant to advise whether to progress her application and requested she provide a response by 15 July 2020.

[4] On 14 July 2020, the Applicant sent ex parte communication to my Chambers and did not provide authorisation for the communication to be forwarded to the Employer Principal.

[5] On 21 July 2020, Mr Ben Schefe, representative of the Employer Principal, sought to have the application dismissed on the basis that a further conference had not been scheduled and that the Employer Principal had received no further communications from the Applicant.

[6] On 24 July 2020, I instructed my Chambers to send the following correspondence to the parties:

“Dear parties,

Reference is made to recent enquiries about the status of this matter.

The Applicant has written directly to Chambers, but has not authorised any correspondence to be forwarded to the Employer. Please note as a result, the Commissioner will not read and consider any material that is not sent to the Employer.

It is also noted that the Respondent, unaware of this ex parte communication, seeks to have the application dismissed on the basis that there had been no further communication from the Applicant.

In these circumstances, the matter is again listed for a preliminary conference. The purpose of this without prejudice and private conference is to ascertain what is an appropriate next step. This will include enquiring whether the parties are prepared to participate in a mediation with a conciliator of the Commission to seek to resolve the matter.

A notice of listing will issue shortly.”

[7] A Notice of Listing was issued for a conference to be held at 10:00 am on 6 August 2020. This conference was vacated and relisted to commence at 3:00 pm on the same day, 6 August 2020.

[8] At the commencement of the conference, my Associate attempted to contact the Applicant on the mobile number provided. An email requesting the Applicant make herself available for the conference and to contact Chambers urgently was sent at 3:09 pm.

[9] Further correspondence was sent on 6 August 2020 noting the Applicant did not attend the conference, and directing the Applicant to provide any response regarding whether she still seeks to progress her application, in writing to Chambers, by 12 August 2020.

[10] On 18 August 2020, my Associate attempted to contact the Applicant twice on the mobile number provided and was unable to leave a voicemail both times.

[11] On 20 August 2020, Mr Schefe advised my Chambers by way of email, copying in the Applicant, that the on 19 August 2020, the Applicant had resigned from her employment effective 2 September 2020.

[12] Attached to the email from Mr Schefe was an email from the Applicant. The email address of the Applicant in the email provided by Mr Schefe was slightly different from the email address nominated by the Applicant in her Form F72 – Application for an order to stop bullying (Form F72). In the Applicant’s Form F72, her email provider was Hotmail whereas the email provided by Mr Schefe was from a Gmail account. Nonetheless, Mr Schefe copied the Applicant’s Gmail email address when providing the correspondence to my Chambers.

[13] On 26 August 2020, my Chambers attempted to contact the Applicant and was unable to leave a voicemail.

[14] No further correspondence or telephone contact has been received from the Applicant to date.

Legislation

[15] At ss. 789FC and 789FD, the Act sets out the circumstances in which a worker can make an application for an order from the Commission to stop bullying.

[16] Relevant to this decision, s.789FF of the Act sets out what must be considered if the Commission is to make orders to stop bullying:

“Section 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.”

[17] Section 587 of the Act sets out when the Commission can dismiss an application:

“Section 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.”

[18] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

Consideration

[19] I note that the power to dismiss a substantive application should only be exercised cautiously, not hastily, and where there is a clear basis for doing so. 1 Such a decision results in the extinguishment of a party’s application, which has been made in order to seek some form relief from a beneficial statutory provision.2

[20] The power to dismiss an application if the non-compliance was unreasonable is discretionary. The Applicant has failed to respond to various correspondence from Chambers, and has failed to file any material in the matter beyond her initial Form F72. The Applicant has shown no willingness to prosecute her case and taken no steps to do so.

[21] In L. Sayer v Melsteel Pty Ltd, 3 the Full Bench held that s.587(1) provides for the dismissal of a matter where the applicant has failed to prosecute their case without examining the merits.

[22] I also note the powers of the Commission in relation to applications for orders to stop bullying, noting the circumstances in which an application can be brought are narrow. Usually where an employee has been dismissed or resigns, or the employment relationship otherwise concludes, there will be no further risk of bullying for the reason that the applicant will no longer be at work or in a position to be bullied. In most cases, there is no risk of further bullying, which must be established for an application under s.789FC to succeed and orders to be made.

[23] Orders made to stop bullying at work are not intended by the legislation to be remedial, punitive or compensatory. The role of the Commission, and any remedy awarded, is preventative. The Commission must consider whether there is an ongoing risk of bullying and, if so, what steps should be taken to prevent that risk.

[24] Without correspondence from the Applicant disputing her resignation, the email provided by Mr Schefe is not disputed. I consider that in line with Shaw,⁴ the Applicant no longer works for the Respondent and no longer is at risk of further bullying. There is nothing in the material suggesting she will be reinstated or is seeking such. On the material before the Commission, it is clear that there cannot be a risk that the Applicant will continue to be bullied at work because the Applicant d is no longer employed by the Respondent and therefore is no longer at work.

[25] In these circumstances, where I cannot make an order to stop bullying, I am persuaded that I should exercise my discretion under s.587 of the Act and dismiss the Applicant’s application for want of prosecution. An Order to this effect will issue accordingly.

COMMISSIONER

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 1   General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [8].

 2   Nick Williams v Sydney Gay & Lesbian Business Association [2019] FWC 4399 at [12].

 3   [2011] FWAFB 7498 at [19].

4 Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank and Another [2014] FWC 3408.