Ying Li

[2019] FWC 4650

[2019] FWC 4650

FAIR WORK COMMISSION

DECISION

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

Ying Li
(AB2019/66)

DEPUTY PRESIDENT KOVACIC CANBERRA, 4 JULY 2019

Application for an FWC order to stop bullying – Applicant has resigned from her employment – no risk of continued bullying at work – application for order to stop bullying dismissed on the basis of no reasonable prospect of success.

[1] On 10 February 2019 Ms Ying Li (the Applicant) filed an application under s.789FC of the Fair Work Act 2009 (the Act) seeking an order to stop bullying in accordance with Part 6-4B of the Act. In her application, Ms Li alleged that she had been bullied by her manager, Mr Barry Herberts, a Clinical Nurse Consultant at the Canberra Hospital. Ms Li was employed by the Australian Capital Territory as represented by the Canberra Health Services Directorate as a Registered Nurse in the Intensive Care Unit at the Canberra Hospital (hereafter referred to as ‘CHS’).

[2] Ms Li’s application was the subject of conferences convened by the Fair Work Commission (the Commission) on 27 February and 14 March 2019. Those conferences failed to result in Ms Li’s concerns being addressed and at the latter conference Ms Li requested that her application be listed for hearing. To that end the Commission issued Directions on 18 March 2019 with Ms Li’s application listed for hearing on 20 and 21 May 2019 (later revised to 3 and 4 June 2019).

[3] On 2 May 2019 CHS’s representative emailed the Commission to advise that Ms Li had resigned from her employment with effect from 8 May 2019 and requesting that the matter be listed for a further conference. The representative also indicated that it was CHS’s view that the Commission may not be satisfied that it had the jurisdiction to make the orders sought by Ms Li.

[4] In subsequent developments, the Commission emailed Ms Li on 7 May 2019 and sought to contact her by telephone and SMS message on 15 May 2019 seeking an indication as to whether she wished to proceed with her bullying application. On 16 May 2019 contact was made with Ms Li who indicated inter alia that she was still considering whether or not she wished to proceed with her application.

[5] On21 May 2019 the Commission wrote to the parties foreshadowing its intention to list the matter for conference on 29 May 2019 and ahead of the hearings scheduled for 3 and 4 June 2019 (the conference was subsequently rescheduled for 30 May 2019).Also on 21 May 2019, CHS filed an application seeking that Ms Li’s application be dismissed on the basis that it had no reasonable prospects of success in circumstances where Ms Li had resigned from her employment.

[6] On 26 May 2019 Ms Li emailed the Commission advising that she would “not attend any meeting at the FWC.” The scheduled conference and rescheduled hearings were therefore both cancelled.

[7] On 17 June 2019 the Commission wrote to Ms Li in the following terms:

“Dear Ms Li

AB2019/66: Application by Li, Ying

I refer to your email advice of 26 May 2019 that you had resigned from your employment with the Australian Capital Territory (as represented by the Canberra Health Services Directorate) (the Respondent). As you may be aware, on 21 May 2019 the Respondent made an application requesting that the Fair Work Commission (the Commission) dismiss your application for an order to stop bullying on the basis that it has no reasonable prospects of success.

My purpose in writing to you is to provide you with an opportunity to make any submissions in respect of the Respondent’s abovementioned application. I would appreciate it if any submission you may wish to make in respect of the Respondent’s application could be provided to my chambers by close of business on Monday, 24 June 2019. In the absence of any submissions being provided it will be assumed that you do not oppose the Respondent’s application. If you wish to be heard in respect of the Respondent’s application please advise my chambers of that when you forward any submissions and the matter will be listed for hearing.

By way of background, the Commission has in a number of instances dismissed bullying applications in circumstances where the applicant has either been dismissed or resigned from their employment (e.g. see Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2014] FWC 3408 where the Commission found that, as the employment relationship had ended, there was no power to make an order to stop bullying and, as a consequence, the application had no reasonable prospect of success). This is because a key consideration for the making of an anti-bullying order is that there is a risk that the worker will continue to be bullied at work. Once the employment relationship has ended there would not usually be a risk that the employee will continue to be bullied at work.

Alternatively, you may simply wish to discontinue your bullying application. If this is your preference please complete and return the attached Form F50 – Notice of discontinuance as soon as possible.”

[1] Ms Li has not responded to the above letter.

The statutory framework

[2] The relevant provisions of the Act are set out below.

“789FE FWC to deal with applications promptly

(1) ...

(2) However, the FWC may dismiss an application under section 789FC if the FWC considers that the application might involve mattersthat relate to:

(a) Australia’s defence; or

(b) Australia’s national security; or

(c) …

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

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.

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) ...

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

Consideration of the issues

[3] Under s.789FF of the Act the Commission has the discretion to make any order it considers appropriate (other than an order requiring the payment of a pecuniary amount) to prevent the worker from being bullied at work where it is satisfied that:

(i) the worker has been bullied at work; and

(ii) there is a risk that the worker will continue to be bullied at work.

[4] As previously mentioned, on 21 May 2019 CHS made an application that Ms Li’s bullying application be dismissed on the basis that it had no reasonable prospects of success given that Ms Li had resigned from her employment and as such there ceased to be a risk that she would be bullied at work by any individual or group.

[5] Section 789FE(2) of the Act sets out some of the circumstances in which the Commission may dismiss an application made under s.789FC of the Act. None of those circumstances exist in this case. However, the legislative Note at s.789(2) of the Act states that “[f]or another power of the FWC to dismiss applications under section 789FC, see section 587.”

[6] Section 587(1)(c) of the Act provides that the Commission may dismiss an application if “the application has no reasonable prospects of success”.

[7] The meaning and application of the phrase “no reasonable prospects of success” was canvassed by Deputy President Gostencnik in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank; Bianca Haines (ANZ). 1In ANZ the applicant, Mr Shaw, was dismissed prior to his application under s.789FC of the Act being determined by the Commission. The implications of this were set out in Deputy President Gostencnik’s decision in the following terms:

“[16] ...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.” 2

[8] In circumstances where Ms Li is no longer employed by CHS, I do not consider that there is a risk that she will continue to be bullied at work. Further, there is no material before the Commission suggesting otherwise. Against that background, I see no reason to depart from the approach adopted in ANZ. This supports the Commission granting the application made by CHS.

Conclusion

[9] For the reasons outlined above I have decided to dismiss Ms Li’s application on the basis that it has no reasonable prospects of success. An order to that effect will be issued in conjunction with this decision.

Printed by authority of the Commonwealth Government Printer

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 1   [2014] FWC 3408

 2   Ibid at [16]-[17]