Thi Hai Luong

[2019] FWC 7749

[2019] FWC 7749

FAIR WORK COMMISSION

DECISION

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

Thi Hai Luong
(AB2019/444)

COMMISSIONER GREGORY MELBOURNE, 13 NOVEMBER 2019

Application for an FWC order to stop bullying.

Introduction

[1] Ms Thi Hai Duong Luong, otherwise known as Ms Amy Luong, has made application for an order to stop bullying under s.789FC of the Fair Work Act 2009 (Cth) (the Act). She claims she was bullied at work by Ms Anne Boulova when employed by Carers of Africa Inc. (Carers of Africa).

[2] The application was dealt with in conference on 12 September 2019 but was not able to be resolved. Ms Luong appeared on her own behalf in that conference, while Mr Bright Chingaya, the Director of Carers of Africa, appeared by telephone on its behalf.

[3] However, Mr Chingaya also raised a threshold issue in response to the application on the basis that while Ms Luong had been employed by Carers of Africa, she was no longer employed, and there was no prospect of her being employed by the organisation again at any time in the future. Therefore, there was no risk that Ms Luong could be bullied at work in the future by the named individual and the application should be dismissed.

[4] On 23 September the Commission sent the following letter to Ms Luong, with a copy also provided to Carers of Africa.

“RE: AB2019/444 – Application by Luong, Thi Hai Duong

I forward this letter following the recent conference on 12 September and my discussions with Mr Bright Chinganya, the Director of Carers of Africa Inc.

It is my understanding that you worked at Carers of Africa Inc. under a Government program that has now come to an end and you no longer work at the Organisation or have any involvement with it. I also understand that in light of recent events there is no possibility of you working with the Organisation again.

I am satisfied that this situation raises a real issue in regard to your application, and whether it is appropriate for the Commission to continue to deal with the matter. I accordingly seek your views in response before deciding how the application should be progressed.

The issue that arises concerns the Commission’s powers to make orders under s.789FC of the Fair Work Act 2009 were it ever to find that bullying at work has occurred. Section 789FF makes clear that before the Commission can exercise the power to make orders it must first be satisfied that bullying at work has occurred. However, it must also be satisfied that “there is a risk that the worker will continue to be bullied at work by the individual or group.”

The fact that you are no longer working or involved with Carers of Africa Inc, and are not likely to be involved again in the future, therefore raises an issue about whether the Commission can be in a position where it could ever consider making orders, given the above requirements in s.789FF. It also means that it is necessary to now consider how the application is dealt with, and whether it should now be discontinued.

By way of further elaboration I refer to previous decisions of the Commission which have dealt with circumstances in which an employee has lodged an application under section 789FC, but is no longer working with the relevant organisation. Those decisions are:

•  Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank; Bianca Haines[2014] FWC 3408;

•  Olusegun Victor Obatoki v Mallee Track Health & Community Services and Others[2014] FWC 8828; and

•  the subsequent Full Bench decision in Obatoki v Mallee Track Health & Community Services and Others [2015] FWCFB 1661, which dismissed on an appeal against the earlier decision by a single member.

I would be grateful if you could now provide your views in response to the matters referred to above and, in particular, your views about the status of the application and how it might be dealt with from this point. If you decide that it is now appropriate to discontinue your application a Notice of Discontinuance will be forwarded to you.

If you are still of the view that the Commission should continue to deal with the application then I will need to have regard to the views of all involved. However, if you do intend to proceed with the matter then it is likely that it will be scheduled for hearing to deal with the threshold question of whether it is appropriate for the Commission to continue to deal with the matter, given that you are no longer employed by the Organisation.

I look forward to your response.”

[5] However, Ms Luong did not direct her attention in her subsequent responses to the specific issue of whether it was appropriate for the Commission to continue to deal with her application, and instead continued to press for her concerns about the alleged bullying to be dealt with. The Commission accordingly advised the parties that the matter was now to be set down for hearing at 10:00 a.m. on 31 October 2019 to deal with the threshold issue raised by Carers of Africa. It also provided the following written advice to the parties on 24 October 2019:

“The matter has been listed to deal only with the threshold issue concerning whether it is appropriate for the Commission to continue dealing with the matter. This issue arises because it is understood that Carers of Africa Inc. claims that there is no possibility of Ms Luong ever being involved with the Organisation again at any time in the future.

The consequent issue that arises is that the Commission can only ever exercise the power to make orders in regard to bullying at work if it is satisfied that “there is a risk that the worker will continue to be bullied at work by the individual or group” (s.789FF of the Fair Work Act 2009).

It would appear difficult to satisfy this requirement if Ms Luong no longer has any involvement with the Organisation. Further details about this issue were set out in the correspondence forwarded to Ms Luong on 23 September 2019.”

[6] The hearing on 31 October 2019 took place by way of telephone. Ms Luong appeared on her own behalf. Mr Chingaya appeared on behalf of Carers of Africa.

Relevant Legislation

[7] Section 789FD of the Act deals with “When is a worker bullied at work?” It states in part:

“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.”

[8] Section 789FE “FWC to deal with applications promptly” emphasises that applications are to be dealt with expeditiously, and also makes reference to the circumstances in which an application might be dismissed. It concludes with a note that states:

“Note: For another power of the FWC to dismiss applications under section 789FC, see section 587.” 1

[9] Section 789FF continues to deal with the circumstances in which the Commission may make orders to stop bullying. It relevantly states:

“(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

[10] Section 587 “Dismissing applications” of the Act also relevantly states:

“(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.” 3

[11] It concludes by indicating the Fair Work Commission (the Commission) may dismiss an application on its own initiative or on application.

The Issue to be Determined

[12] It is clear from the terms of s.789FF that the Commission must first be satisfied that the Applicant has been bullied at work before it can consider making any orders it considers appropriate to prevent the worker from being bullied at work in the future. However, the section also makes clear that the Commission can only then make orders to stop bullying if it is satisfied that there is a risk that the Applicant will continue to be bullied at work.

[13] The Commission is therefore now required to determine in the context of the present matter whether there is any risk that Ms Luong will continue to be bullied at work and, if not, whether the application should be dismissed.

The Submissions and Evidence

[14] Ms Luong emphasised in her submissions that she considered that the behaviour she complained of in her application was not acceptable in any workplace, and had caused her significant stress and anxiety. She also indicated that she was seeking an apology in response to what had occurred.

[15] However, she also indicated that she no longer works for Carers of Africa and would not be working for the organisation again, given what had occurred. She continued to state that “I would not be putting myself in that place anymore.”

[16] She also indicated that she had been endeavouring to establish another organisation in Portland that provided similar services to those provided by Carers of Africa in Dandenong.

[17] Mr Chingaya stated in response, on behalf of Carers of Africa, that the organisation is involved in assisting refugees from Africa who are now living in Victoria. Ms Luong had been placed with the organisation at its location in Dandenong by Wise Employment Services as part of a Government employment program. She worked with the organisation from early 2019 and carried out various tasks and activities until her employment came to an end in early July 2019. He continued to state that Ms Luong would not in any circumstances be working for the organisation again.

[18] He also indicated that he had provided some support in the past for her attempts to establish a similar service in Portland, but this was unrelated to anything to do with her past employment at Carers of Africa at its Dandenong location, and he no longer had any involvement or dealings with her.

Consideration

[19] A number of recent Commission decisions have confirmed that the Commission does not have power to make orders to stop bullying unless it is satisfied there is a risk the worker will continue to be bullied at work. For example, DP Gostencnik concluded in Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank; Bianca Haines 4(Shaw):

“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.”

[20] A Full Bench of the Commission came to a similar conclusion in Obatoki v Mallee Track Health Community Services and Ors 5when it stated:

“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.”

[21] These decisions have also made clear that in circumstances where the Commission has no power to make an order to stop bullying this can provide the basis for it to exercise the discretion available to the Commission to dismiss an application. I refer again in this context to the decision of DP Gostencnik in Shaw when he stated:

“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.” 6

[22] Commissioner Hampton came to a similar conclusion in G.C. when he stated:

“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.” 7

[23] He concluded:

“In these circumstances, there is no basis to make an order and this application must be dismissed. I so order.” 8

[24] In each of the above matters the Commission emphasised that the Applicant was no longer employed by the relevant Employer, and in those circumstances it was appropriate for the application to be dismissed.

[25] There is no issue between the parties that Ms Luong is no longer employed by Carers of Africa, and has not worked with the organisation since early July 2019. Its Director, Mr Chingaya, also stated that there is no prospect of her ever being employed again, and Ms Luong also confirmed that she has no desire to return to work with Carers of Africa, given what she alleges occurred during the time she was employed. She worked for the organisation for a period of around six months and last worked in early July 2019.

[26] As indicated, s.587 of the Act provides a discretion to dismiss an application, including in circumstances where the Commission is satisfied that the application has no reasonable prospects of success. It is also clear from the relevant authorities that determining that an application has no reasonable prospect of success is a decision that should only be arrived at with a degree of caution.

[27] I am satisfied that Ms Luong is no longer employed by Carers of Africa at its Dandenong location, and there is no foreseeable possibility of her ever being employed at that location again. It follows as a consequence that there is no foreseeable risk that she will ever be bullied at work again by the individual named in her application. The Commission therefore does not have the power to make an order to stop bullying as a consequence of s.789FF(1)(b)(ii), even if it were to ever find under s.789FF(1)(b)(i) that Ms Luong had been bullied at work.

[28] I accordingly consider that her application has no reasonable prospects of success and that, in accordance with s.587(1)(c), it is appropriate in all the circumstances for the application to be dismissed. This decision accordingly confirms that the application is dismissed.

[29] It is emphasised, in conclusion, that in dismissing the application the Commission has made no findings about whether bullying at work, as claimed in the application, has occurred. For the reasons indicated above it is not necessary to determine this matter. The application is dismissed.

COMMISSIONER

Appearances:

Thai Hai Luong on her own behalf.

Bright Chingaya for the Respondent.

Hearing details:

2019.

Melbourne:

October 31.

Printed by authority of the Commonwealth Government Printer

<PR714227>

 1   Fair Work Act 2009 at s.789FE

 2   Ibid at s.789FF

 3   Ibid at s.587

 4   [2014] FWC 3408 at [15]

 5   [2015] FWCFB 1661 at [16]

 6   [2014] FWC 3408 at [17]

 7   [2014] FWC 6988 at [166]

 8   Ibid at [173]