Trent Simon Handley Mulligan v Toll Transport Pty Ltd
[2018] FWC 5977
•27 SEPTEMBER 2018
| [2018] FWC 5977 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Trent Simon Handley Mulligan
v
Toll Transport Pty Ltd; Mandeep Singh
(AB2018/384)
DEPUTY PRESIDENT MASSON | MELBOURNE, 27 SEPTEMBER 2018 |
Application for an FWC order to stop bullying – application to dismiss pursuant to s 587 – not granted.
[1] On 5 June 2018, Mr Trent Mulligan (Mr Mulligan) lodged an application (the Application) with the Fair Work Commission (the Commission) for an order to stop bullying under s 789FC of the Fair Work Act 2009 (Cth) (the Act). The Applicant alleges that he has been bullied at work during his employment with Toll Transport Pty Ltd (Toll). He alleges that he has been subjected to bullying at work by Mr Mandeep Singh (Mr Singh) who is employed by Toll.
[2] The matter was listed for two conferences before the Commission on 17 and 27 July 2018 but remained unresolved at the conclusion of those conferences. The matter was then listed for hearing on 2 October 2018 with directions issued for the filing of material by the parties. Both parties filed material in accordance with the directions issued.
[3] On 19 September Toll filed an application with the Commission under s 587 of the Act seeking that:
1. The Application by Mr Mulligan be dismissed; and
2. The hearing date of 2 October 2018 be vacated.
[4] Following receipt of Toll’s application, the Commission wrote to Mr Mulligan requesting him to provide submissions in reply to Toll’s application by 4.00 pm on 25 September 2018. Mr Mulligan did not file any substantive submissions in reply to Toll’s application.
Relevant Legislation
[5] Section 587 of the 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.
The s 587 Application
[6] Toll submitted that the application should be dismissed on essentially two grounds. Firstly, that the evidence filed by the both parties would lead to a conclusion that bullying had not occurred, resulting in a finding that the requirements of s 789FF(1)(b)(i) of the Act “could not be reasonably satisfied”. Secondly, even if bullying were found to have occurred, the requirements of s 789FF(1)(b)(ii) of the Act could not be met because the risk of the Applicant continuing to be bullied cannot arise as the Applicant no longer works with Mr Singh.
[7] In relation to the evidence of bullying, Toll submitted that, Mr Mulligan’s evidence mirrored the material he had filed with his Application; he had provided little or no substantive evidence in support of his claims; and he had primarily focussed on his dissatisfaction with the process and outcome of Toll’s internal investigation. Toll contrasted Mr Mulligan’s evidence with the evidence from its witnesses, Mr Singh and Mr Boncoeur (Team Manager of Mr Singh and Mr Mulligan), which it submitted contradicts the evidence of the Applicant and on balance goes against a finding that bullying conduct had occurred.
[8] Toll sought to rely on what they contended was a factually consistent case in support of its application, that of Ms Olga Lokteeva v Woolworths Limited; Mr David Hayes; Ms Eva McGinley (Lokteeva). 1 In that case, an employer obtained an order to dismiss an application pursuant to s 587 of the Act on the grounds that a change in the reporting relationship meant that the parties no longer worked together and therefore the requirements necessary for the making of an order pursuant to s 789FF(1)(b)(ii) of the Act could not be established.
Consideration
[9] Section 587 of the Act provides a discretion to dismiss an application if, inter alia, the application has no reasonable prospect of success. Without traversing the authorities that have considered the proper application and meaning of the phrase, ‘no reasonable prospect of success’, it is sufficient to make the following observations.
[10] 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. These examples do not provide an exhaustive description of the circumstances when an application has no reasonable prospect of success.
[11] In Spencer v The Commonwealth of Australia (Spencer),2 consideration was given to the meaning of the phrase, ‘no reasonable prospect’, in the context of s 31A of the Federal Court of Australia Act 1976. In that case the majority (Hayne, Crennan, Kiefel and Bell JJ) said the following:
“In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described with or without the additional intensifying epitaphs like “clearly”, “manifestly” or “obviously” as “frivolous”,” untenable”, “groundless” or “faulty” but none of these expressions alone or in combination should be understood as providing a sufficient chart of the metes and bounds of the powers given by section 31A nor can the content of the word “reasonable” in the phrase, “no reasonable prospect” be sufficiently, let alone completely illuminated by drawing some contrast with what would be a frivolous, untenable, groundless or faulty claim.
Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under section 31A if, and only if, satisfied that there is no reasonable prospect of success. Of course it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly but the elucidation of what amounts to no reasonable prospect can best proceed in the same way as content has been given through a succession of decided cases to other generally expressed statutory phrases such as “just and equitable” when it is used to identify the ground for winding up of a company. At this point in the development of the understanding of the expression and its application, it is sufficient but important to emphasise that the evident legislative power as revealed by the text of the provision would be defeated if its application is read as confined to cases of a kind which fell within the earlier different procedural regimes.”3
[12] I believe that the observations in Spencer are relevant to the construction and application of the phrase ‘has no reasonable prospect of success’ as it appears in s 587 of the Act.
[13] The power to dismiss under s 587 of the Act is exercisable in relation to ‘an application’. This raises the question of the nature of the application Mr Mulligan has made. In the context of the Commission’s anti-bullying jurisdiction, the answer is to be found in s 789FC of the Act, which provides that a worker ‘who reasonably believes that he or she has been bullied at work may apply to the FWC for an order under s 789FF’. In assessing whether ‘the application’ for an order under s 789FF of the Act ‘has no reasonable prospects of success’, it is plainly necessary to consider whether each of the preconditions for the making of an order under that section might be able to be made out.
[14] The question as to whether the Mr Mulligan’s bullying application has no reasonable prospect of success must be answered by having regard to: the statutory provisions contained in Part 6-4B of Chapter 6 of the Act; the provisions under which Mr Mulligan’s application is made; taking into account the facts as presently known; the facts that are not disputed; and taking Mr Mulligan’s case at its highest. Put simply, is there some reasonable prospect that Mr Mulligan will be able to persuade me to make an order under s 789FF of the Act?
[15] Section 789FC of the Act provides that a worker who reasonably believes that he or she has been bullied at work may apply to the Commission for an order under s 789FF of the Act. Section 789FB sets out the meaning of the phrase ‘bullied at work’. That a person who seeks an order has made an application under s 789FC of the Act is one of the matters about which I must be satisfied before considering whether to exercise my discretion to make an order to stop bullying under s 789FF of the Act. It is clear in the present matter that Mr Mulligan has made an application under s 789FC of the Act.
[16] The relevant remedy in respect of bullying applications is an order which the Commission considers appropriate ‘to prevent the worker from being bullied at work by the individual or group’.4 If other jurisdictional prerequisites have been met, the discretion to make an order is only exercisable if, relevantly, 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.5
[17] It is clear from the terms of s 789FF of the Act that if I am satisfied that Mr Mulligan has been bullied at work, the next step is to then determine whether there is a risk that Mr Mulligan will continue to be bullied at work. In assessing that risk, I must be satisfied that the risk that Mr Mulligan will continue to be bullied at work although not imminent, must be real, and not merely a conceptual or hypothetical, risk.
[18] The claim that bullying of Mr Mulligan has occurred is strongly contested. True it is that Mr Mulligan has filed limited material in support of his application and that of the material that has been filed, much of it focuses on Mr Mulligan’s dissatisfaction with Toll’s investigation.
[19] In simple terms, Mr Mulligan claims to have been bullied by Mr Singh in a series of incidents involving the two men. Toll witnesses, Mr Singh and Mr Boncoeur, have rebutted Mr Mulligan’s claims in their filed evidence. It falls to the Commission to resolve the evidentiary conflict between the claims of Mr Mulligan and the evidence of Mr Singh and Mr Boncoeur with the benefit of witness examination and cross-examination. The evidence of Mr Mulligan, Mr Singh and Mr Boncoeur has not yet been tested and I am loathe to pre-emptively deny Mr Mulligan an opportunity to present his evidence as best he can and test the evidence of Mr Singh and Mr Boncoeur on the contested claim that bullying conduct was directed towards Mr Mulligan.
[20] Section 789FF(1)(b)(ii) of the Act also makes clear that, if I am satisfied that Mr Mulligan was subject to bullying, then I must also be satisfied that there is a risk that he will continue to be bullied at work by an individual or group of individuals. Without satisfaction of the existence of a risk of continued bullying at work of Mr Mulligan by an individual or group, no power to make an order exists.
[21] Toll contends that the filed evidence of Mr Boncoeur establishes that since 2 May 2018; Mr Mulligan has been primarily performing his role in the receiving and picking team which is located in a different part of the warehouse to his previous role; he no longer works directly with or reports to Mr Singh; there is no reason for Mr Mulligan and Mr Singh to come into contact during the course of their duties; and Mr Boncoeur has not witnessed any contact between the two men since 2 May 2018. Toll submits that the separation of Mr Mulligan from Mr Singh in an operational sense means that the risk of further bullying cannot arise. Consequently the requirements of s 789FF(1)(b)(ii) of the Act, a precondition for issuing an order, cannot be met.
[22] While Toll has filed evidence going to the separation of Mr Mulligan and Mr Singh within the workplace, that evidence is yet to be answered by Mr Mulligan or tested in terms of the degree of reporting line, operational and physical separation. I am not yet in a position to be satisfied that the risk of further bullying, if such bullying conduct is found to have occurred, is real, and not merely a conceptual or hypothetical risk.
[23] Toll referred me to Lokteeva as authority for its proposition that the separation of Mr Mulligan from Mr Singh in the present case was, in addition to the evidentiary case on the bullying conduct, sufficient to dismiss the application under s 587 of the Act. I disagree.
[24] The factual circumstances in Lokteeva were unique to that case and are distinguishable from the present. In Lokteeva, the matter had been the subject of three conferences and a recommendation from Commissioner Riordan, the bullying conducted alleged by Ms Lokteeva was resolved by her employer complying with a recommendation from the Commissioner and Ms Lokteeva accepted the outcome of the disciplinary process. Further, the employer gave an unprompted commitment that Ms Lokteeva, on her return to work, would be moved into a Store Manager role at a new store so that she did not have a reporting relationship to, or regular contact with either of the employees against whom she had alleged bullying. The factual circumstances of Lokteeva are in my view sufficiently dissimilar to those in the present case so as to be of limited assistance.
[25] The starting point of any consideration of an application to dismiss is that Mr Mulligan is entitled to have his case heard. I accept that the Commission should be cautious in dismissing an application. I am not persuaded at this stage in the circumstances of the present matter that Mr Mulligan has no reasonable prospect of success. I am consequently unwilling to pre-emptively deny Mr Mulligan a right to be heard, put his case and answer the material advanced by Toll. This is particularly the case in circumstances where, as a self-represented litigant at the point of his case preparation, his knowledge and familiarity with the processes may be limited.
[26] I have carefully weighed the materials filed and submissions made by Toll in its application to dismiss the matter. In the circumstances of this matter, I am not persuaded to exercise my discretion to dismiss the matter before me under s 587 of the Act as sought by Toll.
Conclusion
[27] For the reasons outlined above, the application by Toll under s 587 of the Act is dismissed. The substantive matter of Mr Mulligan’s application under s 789FC application will proceed to be determined in accordance with previous directions issued.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR700780>
1 [2016] FWC 3603.
2 (2010) 241 CLR 181.
3 Ibid at [59] – [60].
4 S 789FF(1) Fair Work Act 2009.
5 S 789FF(1)(b) Fair Work Act 2009.
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