Tony Williams

[2021] FWC 5470

[2021] FWC 5470

FAIR WORK COMMISSION

DECISION

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

Tony Williams
(AB2021/363)

DEPUTY PRESIDENT BINET PERTH, 1 OCTOBER 2021

Application for an FWC order to stop bullying.

[1] On 26 June 2021, Mr Tony Williams (Mr Williams) filed an application (Application) with the Fair Work Commission (FWC) for an order to stop bullying in accordance with section 789FC of the Fair Work Act 2009 (Cth) (FW Act).

[2] Mr Williams is employed by Tilt Trays Australia (Tilt Trays) as a Truck Driver. His Application alleges that several employees of Access Equipment Hire Australia Pty Ltd and Access Group International Holdings Pty Ltd (together Access) had engaged in bullying behaviour towards him (Named Persons).

[3] On 13 July 2021 the Named Persons and Access filed responses to the Application denying the allegations.

[4] On 21 July 2021 the parties attended a conciliation conference before me, a possible resolution of the Application was proposed. Following the conference the parties undertook further negotiations in order to endeavour to resolve the matter. However ultimately the parties were unable to agree terms of resolution and Mr Williams requested that the Application be listed for a hearing.

[5] Directions were issued to the parties on 5 August 2021 (Directions). The Directions required Mr Williams to file an outline of submissions, his evidence and any authorities upon which he relied by 4pm (AWST) on Thursday 12 August 2021. The Directions stated that compliance with the Directions was mandatory.

[6] On 10 August 2021 Mr Williams requested that the Application be listed for a further conference. The parties were advised that a further conference would be listed however the Directions would must be complied with in the interim.

[7] Mr Williams failed to file any materials by 4pm on Thursday 12 August 2021 in accordance with the Directions.

[8] On 13 August 2021 Chambers wrote to Mr Williams noting that he had failed to meet the deadline for filing his materials and that therefore he would need to seek an extension to file his materials. Mr Williams was informed that if he failed to seek an extension or file his materials by 4pm Monday 16 August 2021 the Application may be dismissed. Mr Williams was advised that any application for an extension of time to file his materials should be supported by evidence in support of those reasons.

[9] On 13 August 2021 Mr Williams sought an extension of ‘2-3 weeks for the paperwork required’ asserting that he was not computer literate and that the person assisting him had ‘undergone a few medical issues in the last couple of weeks and is recovering’.

[10] On 13 August 2021 Mr Williams was informed that he had not provided adequate grounds or evidence to justify granting such a lengthy extension however he would be granted an extension until 4pm (AWST) Tuesday 17 August 2021 to file his materials. He was advised that if he had evidence to support a longer extension, he should file this with Chambers by 4pm (AWST) Monday 16 August 2021.

[11] On 16 August 2021, Mr Williams informed Chambers that he was unable to provide documented evidence from a medical professional and sought an extension to file his materials until 20 August 2021.

[12] On 16 August 2021, Chambers informed Mr Williams that medical evidence that one individual was not fit to assist him would unlikely form the basis for a further extension in circumstances where there was no evidence that he was unfit to prepare the materials himself or get assistance from someone else to assist him. To assist Mr Williams prepare his materials Chambers provided Mr Williams with resources on obtaining free or low-cost legal advice. Chambers also advised Mr Williams that if he was unable to use a computer to type his materials, he should hand write them.

[13] On 16 August 2021 Mr Williams again wrote to Chambers and stated that he was “unsure of how to gain evidence and witness statements from employees of the company’ and that he didn’t believe he had been given sufficient time to prepare his materials.

[14] On 17 August 2021 Chambers informed Mr Williams that I would grant him a further extension to file his materials by 4pm (AWST) Thursday 19 August 2021. Chambers also advised the parties that another matter had vacated enabling Chambers to bring the Hearing date forward. Amended Directions were issued to the Parties reflecting these changes. Chambers also provided Mr Williams with access to a range of materials to assist him prepare his materials. This included a link to the Anti-Bullying Benchbook, a template witness statement guide and a template document list.

[15] On 19 August 2021, Mr Williams informed Chambers that he did not intend to file any materials.

[16] On 23 August 2021, Chambers wrote to Mr Williams outlining that in the absence of Mr Williams filing any materials in accordance with the Directions the Deputy President proposed to dismiss his application pursuant to section 587 of the Fair Work Act.

[17] Mr Williams was invited to make submissions providing reasons as to why the FWC should not dismiss the Application and evidence or other documentary material supporting those reasons by 4pm (AWST) Wednesday 25 August 2021.  Mr Williams was informed that if he wished to also make oral submissions in relation to the proposed dismissal of the Application he must advise Chambers by 4pm (AWST) Wednesday 25 August 2021.

[18] On 25 August 2021 Mr Williams wrote to Chambers indicating that he wished for his Application to proceed however he did not file any materials, indicate that he intended to file any materials or otherwise respond to the proposal that the Application be dismissed pursuant to section 587 of the FW Act.

Consideration

[19] Section 587 of the FW Act provides:

“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.”

[20] The FWC is obliged to perform its functions and exercise its powers in a manner that is fair and just, quick, informal and avoids unnecessary technicalities. 1

[21] The power to dismiss a substantive application should only be exercised cautiously and sparingly. 2

[22] In Mcleod v Kulgera Trading Company Pty Ltd, 3 Vice President Catanzariti dismissed a section 365 application on his own initiative pursuant to section 587 on the grounds that the applicant had not responded to the FWC’s repeated attempts to get in contact with her and had failed to participate in a teleconference.

[23] In doing so, the Vice President relied on a decision of Commissioner Gooley (as she was then) in Rebecca Tomas v Symbion Health 4 in which she stated:

“[57] Section 587 gives Fair Work Australia the power to dismiss a matter. Section 587(a), (b) and (c) do not limit Fair Work Australia’s power to dismiss matters for other reasons.”

[24] In a number of cases since the FWC has accepted that section 587 provides a power to dismiss an application where there is an unreasonable or unexplained non-compliance with directions of the FWC. 5

[25] Mr Williams was advised at the conference which was held on 21 July 2021 that if the matter proceeded to Hearing he would be required to file materials within seven days of the Directions being issued.

[26] The Directions set out clearly what he was required to file and when.

[27] Mr Williams was given multiple extensions to file his materials. He was also provided with access to materials to assist him prepare his materials or to obtain assistance to prepare his materials.

[28] There is no medical evidence before me to suggest that Mr Williams is unable to prepare his materials or provide instructions to a representative to prepare them on his behalf.

[29] As at the date of this decision Mr Williams has filed nothing and has indicated that he has no intention to file anything.

[30] It is a precondition to the granting of any order under s.789FF of the FW Act that the FWC must be satisfied of two matters. The first matter is that the worker has been bullied at work by an individual or group of individuals and the second is that there is a risk that the worker will continue to be bullied at work by the individual or group.

[31] The only material that I have from Mr William is the completed Form F72. As it stands, there is no evidence currently before me on which I could be satisfied that either of the two necessary circumstances exist and no likelihood that there will be such evidence if the Hearing were to proceed.

[32] Mr Williams has identified no prejudice to him if the Application is dismissed. If behaviours occur which might form the basis of the granting of orders then he can make a new application at that time.

[33] I therefore dismiss the Application pursuant to section 587 of the FW Act for the reasons set out above.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1 Section 577 of the FW Act

 2   Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station[2019] FWCFB 2925.

 3   [2014] FWC 2112.

 4   [2011] FWA 5458.

 5   See for example: Application by Monserrarah Duke [2021] FWC 5319, Application by Hang Li [2021] FWC 5348