1
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Mitchell Shaw
v
Australia and New Zealand Banking Group Limited T/A ANZ Bank;
Bianca Haines
(AB2014/1091)
DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 26 MAY 2014
Application for an FWC order to stop bullying; Employee dismissed after application lodged;
Application to dismiss because application for order to stop bullying has no reasonable
prospect of success; No risk of continued bullying at work; Application to dismiss upheld;
Application for order to stop bullying dismissed
[1] This is an edited version of a decision delivered in transcript on 9 May 2014.
Mr Mitchell Shaw has applied under s. 789FC of the Fair Work Act 2009 (the Act) for an
order to stop bullying. In order to facilitate the hearing and determination of that application I
made directions on 1 April 2014 for the filing and exchange of materials on which each party
proposed to rely. I set the matter down for hearing with an estimate of two days commencing
14 May 2014. Mr Shaw was, until the termination of his employment on 11 April 2014,
employed by the Australia and New Zealand Banking Group Ltd (ANZ). ANZ was also the
employer of persons against whom allegations of bullying have been made by Mr Shaw in his
application.
[2] On 22 April 2014, ANZ applied pursuant to s. 587(3) of the Act for an order under s.
587(1) dismissing Mr Shaw’s application. In order to deal with that application, I made
directions requiring Mr Shaw and ANZ to file an exchange of submissions. I have read and
considered those submissions and have taken them into account in the decision that I have
made. I also gave the parties an opportunity to make further submissions at the hearing on 9
May 2014, which they have done, and which I have also taken into account.
[3] ANZ’s application for dismissal is made on the basis that Mr Shaw’s application for
an order to stop bullying has no reasonable prospect of success. This is so because since
Mr Shaw’s dismissal on 11 April 2014 there ceased to be a risk that Mr Shaw will continue to
be bullied at work by any individual or group. Mr Shaw has advanced a number of grounds
in opposition to ANZ’s application for dismissal. His principal argument is that his
application should be permitted to continue because the termination of his employment whilst
on approved leave was, to use his description, “invalid”. Mr Shaw refers to a number of
decided cases in support of his proposition but, as I indicated in my earlier exchange with
[2014] FWC 3408
EX TEMPORE DECISION
E AUSTRALIA FairWork Commission
[2014] FWC 3408
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Mr Shaw on transcript, those authorities are neither on point, nor do they assist in determining
the relevant question that I have to answer.
[4] Mr Shaw also complains about the payment he received in lieu of notice and that he
has been deprived of the full benefit of the period of his parental leave. Mr Shaw also says
that the termination of his employment, while he was the primary caregiver, resulted in a
diminution of his capacity to seek alternative employment during the notice period. Mr Shaw
also submits that ANZ’s requirement that he respond to particular allegations that have been
made against him and which were relied upon to support the termination of his employment
whilst he was on approved leave interfered with his right to take leave and to enjoy that leave
and had a deleterious effect on his wellbeing.
[5] None of the matters that are advanced by Mr Shaw have any bearing upon the
application for dismissal by the ANZ. Mr Shaw’s complaint that his dismissal was invalid is
essentially an argument that his dismissal was unlawful or was otherwise in breach of the
contract of employment. Whether or not that is the case is a matter that will need to be
determined elsewhere but, even if the allegation is ultimately accepted, Mr Shaw’s dismissal,
unlawful as it may have been, ended the employment relationship and the employment on
11 April 2014.
[6] It is not, for example, being contended by Mr Shaw that ANZ engaged in conduct that
amounted to a repudiation of the contract of employment, that Mr Shaw refused to accept the
repudiation, and that he elected to keep the contract of employment on foot. Even if such a
contention were to be advanced, there is no material before me from which it might be
concluded that Mr Shaw in fact made such an election and that by his conduct he continued to
treat the contract of employment as ongoing. Nor is there any suggestion that he notified
ANZ that that was what he was doing.
[7] To the contrary, on 5 May 2014 Mr Shaw lodged a general protections application
under s. 365 of the Act in which he alleges that adverse action in the form of dismissal
occurred on 11 April 2014 and that the adverse action was taken by ANZ for reasons that
included that he had made a complaint about his employment and that he had made an
application for an order to stop bullying. It seems to me that Mr Shaw has accepted that there
has been a dismissal and has acted accordingly. To the extent that it is necessary that I find
that to be the case, I so find and I am satisfied that the employment relationship between
Mr Shaw and ANZ has ended. I express no view as to whether the termination of
employment was lawful or otherwise and it is not necessary for me to do so.
[8] Section 587 of the Act provides a discretion to dismiss an application if, inter alia, the
application has no reasonable prospect of success. Let me first deal with the meaning and
application of the phrase, “has no reasonable prospect of success”. Without traversing in any
great detail the authorities that have considered the proper application and meaning of the
phrase, “no reasonable prospect of success,” it is sufficient for me for present purposes to
make the following observations. 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
[2014] FWC 3408
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substance as to be not reasonably arguable. But these examples do not provide an exhaustive
description of when a particular application has no reasonable prospect of success.
[9] Secondly, I am mindful of that which the majority (Hayne, Crennan, Kiefel and Bell
JJ) of the High Court of Australia in Spencer v The Commonwealth of Australia1 had to say
when their Honours considered 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 their Honours 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.2
[10] In Spencer the High Court was saying that one should not make the mistake of only
concluding that a proceeding has no reasonable prospect of success if it is frivolous,
untenable, groundless or faulty and that full expression should be given to that phrase. It
seems to me that the observations in Spencer are apt to apply to the construction and
application of the phrase “has no reasonable prospect of success” as it appears in s. 587 of the
Act.
[11] Thirdly, I would also observe that the answer to the question whether a particular
application has no reasonable prospect of success in the context of s. 587 may differ
depending on the time at which the question is asked. This, it seems to me, is evident from
the word “has”. So it is that an application at its inception may have some reasonable prospect
of success but, as circumstances change during the course of dealing with an application,
those changed circumstances might have the result that an application which once had some
reasonable prospect of success no longer has a reasonable prospect of success.
[12] In this case the relevant circumstance that has changed since Mr Shaw made his
application on 11 April 2014 is that he has been dismissed from his employment by the ANZ.
The employment has ended. So far as is relevant for present purposes the question that must
be answered is, having regard for the statutory provisions contained in Part 6-4B of Chapter 6
1 (2010) 241 CLR 181
2 Ibid at [59] - [60]
[2014] FWC 3408
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of the Act, the provisions under which Mr Shaw’s application is made, and taking into
account the facts as presently known, those that are not disputed, and taking Mr Shaw’s case
at its highest, does Mr Shaw’s application have a reasonable prospect of success? Put simply,
is there some reasonable prospect that Mr Shaw will be able to persuade me to make an order
under s. 789FF? I now turn to consider that question.
[13] 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.
Section 789FB sets out that which is meant by the phrase “bullied at work”. That a person
who has made an application has been bullied at work by an individual or a group of
individuals 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.
[14] For the purposes of ANZ’s application to dismiss I am prepared to assume without
deciding that Mr Shaw will be able to satisfy me at the hearing of his application that he was
bullied at work by an individual or group of individuals. I am also prepared to assume without
deciding that ANZ will not be able to satisfy me that the actions about which Mr Shaw
complains were reasonable management actions, carried out in a reasonable manner. But
those matters are not the only matters about which I must be satisfied.
[15] 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.
[16] It is clear that Mr Shaw is no longer employed by ANZ. The employment relationship
has ended. That Mr Shaw is taking steps to seek a remedy in relation to his dismissal and that
that may result in reinstatement at some point in the future does not have a bearing on the
question that I must answer and is speculative and uncertain. 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. An order dismissing Mr Shaw’s
application has been made separately in PR550413. I would observe that, if as a consequence
of Mr Shaw’s general protections application or any other remedy that he seeks, he is
reinstated to his former position or another position with ANZ and at that point he has
concerns about a risk of being bullied at work, it seems to me, and the ANZ seem to accept
that he will be at liberty to make a fresh application at that time. That he has made this
application and that it has been dismissed will not operate as a bar to any future application if
the jurisdictional facts can be established in relation to that application.
[2014] FWC 3408
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DEPUTY PRESIDENT
Appearances:
M. Shaw on his own behalf
D. Natenzon for the Respondents
Hearing details:
Brisbane/Melbourne by Videolink
2014.
9 May
Printed by authority of the Commonwealth Government Printer
Price code C, PR550938
WORK COMMISSION SEAL OF
