1
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Paul Hill
v
L E Stewart Investments Pty Ltd t/a Southern Highlands Taxis and
Coaches; Laurie Stewart; Robert Carnachan; Nick Matinca
(AB2014/1121)
VICE PRESIDENT HATCHER SYDNEY, 25 JULY 2014
Application for an order to stop bullying.
[1] On 17 March 2014 Mr Paul Hill made an application to the Fair Work Commission
(Commission) under s.789FC(1) of the Fair Work Act 2009 (the Act) for an order to stop
bullying. The application, in summary, alleged that Mr Hill had been bullied by Mr Laurie
Stewart, Mr Robert Carnachan and Mr Nick Matinca during his engagement as a taxi driver
with L E Stewart Investments Pty Ltd trading as Southern Highlands Taxis and Coaches.
[2] Mr Hill’s application was the subject of a telephone conciliation conference conducted
on 3 April 2014. That conference was not successful in achieving a resolution of the matter.
Accordingly the matter was set down for hearing in Wollongong on 10 July 2014. Directions
were issued on 24 April 2014 requiring Mr Hill to file an outline of submissions, witness
statements and any other documentary material upon which he intended to rely by 4 June
2014. The respondents were required by the directions to file their material in reply by 2 July
2014.
[3] In response to these directions, on 4 June 2014 Mr Hill filed a two page untiled
document which contained a mixture of factual assertions and submissions. On 12 June 2014
Mr Stewart sent an email to my Associate querying whether Mr Hill had complied with the
directions and asking for confirmation that the respondents had to file their material by 2 July
2014. In accordance with usual practice, this email was copied by my Associate to Mr Hill.
Mr Hill then sent what might fairly be described as a vituperative email to Mr Stewart later
the same day. This led to a number of emails being exchanged between the parties and my
Associate. Those emails included the following email sent by Mr Hill to my Associate at
12.57pm on 19 June 2014:
“I remind you that during initial submissions you refused me any “advice” or assistance
relying on the “commission does not investigate complaints”.
For example Mr Stewart did not properly file his submissions and yet your office was
very helpful sending me the submission despite the fact to this day Mr Stewart has not
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properly served his first response. And he is seeking to serve his further submissions
outside of the Courts rules, you and Mr Stewart do not get to make this stuff up as you
go along.
You made no comment on my asking for your assistance regarding Mr Stewart
sending me documents as part of your process intended to blackmail me or how do I
protect my witnesses from being dropped of the roster or being further intimidated,
apparently the victims are not your concern.
There were other matters that I raised with you and you refused to even answer
questions about them.
I demand an explanation as to why Mr Stewart appears to be getting free advice from
you and your office, while you are right any correspondence must be copied to all
parties. You know better than I that you cannot copy the other party in when you feel
like it, you have acted against every Courts Rules.
Nor are you or your office allowed to make comments and offer advice to one party
only, you have damaged my submissions without my knowledge and without any right
to do so.
You do not have the right to categorise a victims frustration as “arguably” &
“regrettable” and ignore another parties failure to follow process and attempts to
intimidate and blackmail.
For the record I have been given (by current staff) and will submit the companies own
documents and files, memo’s and text messages in my evidence. Which includes
sworn and written statements from the 5 witnesses.
I know as I have not named the witnesses you would consider that they would not be
allowed to testify (legal advice you should not have given to Mr Stewart), however in
final submissions after Mr Stewarts I will submit to his honour that as each current
employee have reasonable grounds to expect termination when identified that their
names be withheld.
Following your explanation which I demand immediately as to why you feel entitled
to assist one party by damaging the other I will next demand his honours view on your
actions and its effect on my rights.
I will also be making complaint to the Ombudsman and through other avenues.”
[4] Because Mr Hill’s email referred to an intention to rely on five witnesses statements
and other documentary material which had not been filed and served by him in accordance
with the directions, I determined to list a directions hearing in order to clarify the position in
this respect and, if necessary, to issue further directions. Accordingly, at 1.54pm on 19 June
2014, my Associate sent the following email to the parties:
“Dear Parties,
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In light of the recent correspondence the Vice President has determined that a further
directions hearing should be conducted by way of telephone.
As a matter of urgency, could the parties please advise of their availability for the
telephone directions to take place at 9.30am tomorrow morning.”
[5] Mr Stewart subsequently advised by email later that day that he was available for the
telephone directions hearing set to take place on 20 June 2014. No advice was received from
Mr Hill.
[6] On 20 June 2014 my Associate again attempted to telephone Mr Hill twice between
9.00am and 9.30am. There was no answer to either telephone call. Mr Stewart was
consequently advised that the telephone directions would not be proceeding that morning as
proposed.
[7] At 2.04pm on 23 June 2014 my Associate sent the following email to Mr Hill copying
in Mr Stewart:
“Dear Mr Hill,
Last week I sent you an email and attempted to contact you by telephone to arrange a
further telephone conference. I have yet to hear from you in regards to that
correspondence.
Could you please advise, as a matter of urgency, of your availability on Wednesday
and Thursday of this week to participate in a further telephone conference.”
[8] Mr Hill did not reply to the above emails nor did he return further telephone calls from
my Associate.
[9] On 2 July 2014 the respondents filed witness statements, submissions and other
documents in accordance with the directions.
[10] On 4 July 2014 an email was received in chambers from Mrs Cassandra Hill. The
email simply stated, “My husband is not well enough to deal with this matter and I would not
let him work for people like this”.
[11] Later that day my Associate sent an email to Mr Hill, which was copied to Mrs
Cassandra Hill and Mr Stewart, as follows:
“Dear Mr Hill,
I note the below correspondence from your wife which we have received stating that
you are “not well enough to deal with this matter”. I infer from the email that you may
not be in a position to attend the hearing of your anti-bullying application listed in
Wollongong for next Thursday 10 July 2014.
If that is the case, there are two options available to you:
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1. File a Form F50 - Notice of Discontinuance. I have attached a copy for your
convenience. A discontinuance has the effect of bringing the proceeding to an
end.
2. Apply for an adjournment of the hearing. An adjournment application would
need to be supported by satisfactory evidence (including medical evidence if
necessary) demonstrating your inability to attend the hearing.
Otherwise the hearing will proceed as listed. If you do not attend the hearing the
matter may be dismissed in your absence.”
[12] No response to the above email was received.
[13] On 9 July 2014 my Associate attempted to telephone Mr Hill on the mobile number
and home number identified in his application in order to ascertain whether he intended to
attend the hearing in Wollongong listed the following day. There was no answer on either
line. A voicemail message was left on the home number requesting Mr Hill confirm his
attendance at the hearing listed for tomorrow in Wollongong, or to advise of his intention to
discontinue the matter. No response was received from Mr Hill. In addition, the following
email was sent by my Associate to Mr Hill at 12.06pm that day:
“Dear Mr Hill,
I am writing to confirm that your anti-bullying application remains listed for hearing at
10.00am tomorrow at Level 6 , 90 Crown St, Wollongong 2500.
If you wish to pursue your anti-bullying application you are required to attend. If you
do not intend to pursue your application and you do not wish to attend the hearing in
Wollongong tomorrow you should promptly discontinue your application to save costs
and inconvenience to the Commission and the respondent. I have attached a Notice of
Discontinuance Form F50 for your convenience should you wish to fill it in and serve
it by email.”
[14] No response to the above email was received.
[15] On 10 July 2014 the hearing of the matter commenced in Wollongong at
approximately 10.05am. The respondents, who were self-represented, announced their
appearances. Mr Hill was not in attendance at the hearing.
[16] At approximately 10.10am the hearing was adjourned for half an hour. At 10.15am
and again at 10.30am my Associate attempted to call Mr Hill on both his mobile number and
home number. A message was left on the mobile number advising that the hearing had
commenced as listed in Wollongong. Mr Hill did not answer or reply to the telephone calls.
[17] The hearing resumed at approximately 10.40am. There was still no appearance by Mr
Hill. A direction was then issued ex tempore to the effect that Mr Hill was required to file and
serve within seven days a satisfactory explanation, with supporting evidentiary material, for
his failure to attend the hearing, and that any failure to do so would cause the application to be
dismissed. The respondents having foreshadowed an intention to apply for costs, a further
direction was issued requiring the respondents to file and serve any application for costs
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pursuant to s.611 of the Act supported by brief submissions within a further seven days. The
matter was then adjourned. The directions were subsequently confirmed in writing and sent to
Mr Hill and the respondents.
[18] On 17 July 2014 an email was received in chambers from Mrs Cassandra Hill. The
email raised a number of issues concerning the merits of Mr Hill’s case. Insofar as Mr Hill’s
non-attendance at the hearing on 10 July 2014 was concerned, the email stated the following:
“In relation to my husband having a reasonable excuse for not attending, I must throw
myself at your mercy, my husband is very close to having a nervous breakdown, I had
to step in, I told him I had advised the court that he did not want to proceed.
I know understand I should have completed a discontinue form, I apologize for not
doing this, I will not allow my husband to continue with this matter and therefore I ask
you to dismiss.”
[19] The above passage in the email appeared to indicate a desire not to proceed with the
application, but it was unclear whether this communication had been authorised by Mr Hill.
Consequently an email was sent from my chambers to Mrs Cassandra Hill and copied to Mr
Stewart. The email stated, “If Mr Hill wishes to discontinue the matter could you please fill in
the attached F50 – Notice of Discontinuance and send it back to me as soon as possible.” No
reply was received to this email.
[20] On 18 July 2014 an email was received from Mr Stewart and stated as follows:
“We note that Mr Paul Hill finally complied with your directions to provide an
explanation for his failure to attend the hearing on 10 July, 14. Whether the
explanation is satisfactory to you is unknown to us. We also note that you have
provided Mr Hill through his wife with another Notice of Discontinuance, which it
would appear has not been completed or returned to you as yet.
Only this afternoon both Messrs Carnachan & Matinca asked how long they must
suffer this process & hence the reason I am emailing you now.
Your Directions dated 10 July were to the point in that the matter should be conclusive
by 5.00 pm yesterday however we are still at the behest of Mr Hill.
From all evidence supplied to you by us it would be evident that we are not the guilty
party but have been held to blackmail because we refused to reinstate Mr Hill when he
resigned & caused a significant disturbance within this business. We realise that the
Bullying Legislation is very new & while we support its introduction & the
management of the law by yourselves it would appear that there must be some
“filtering” or mechanism whereby innocent parties can be protected from those who
wish to abuse the system & use it to their improper advantage. Interestingly Mrs Hill
states in her email of yesterday that her husband is a bankrupt therefore he had nothing
to lose with this entire process but everything to gain including causing us additional
work, expense & emotional pressure.
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We look forward to hearing from you & bankrupt or not, should you wish to conclude
this matter against Mr Hill then we would appreciate for the record costs being
awarded against him.”
[21] On Monday 21 July 2014 a telephone call was made by my Associate to the home
telephone number of Mr Hill. Mrs Cassandra Hill answered the call. My Associate inquired
whether Mr Hill intended to discontinue his application. Mrs Hill advised that Mr Hill was
going to discontinue the matter and would do so by way of email. However, no further
communication has been received from either Mr or Mrs Hill to that effect.
[22] Section 587 of the Act, which is concerned with the dismissal of applications, provides
as follows:
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.
[23] I have determined to dismiss Mr Hill’s application, for two reasons. The first is that
there has been a failure by him to prosecute his application since approximately 19 June 2014.
This has been demonstrated by his failure to respond to the request to arrange a directions
hearing, to attend the hearing, and to give any response to various requests from my chambers
for him to provide advice as to his intentions with respect to the application. Mrs Hill’s email
of 17 July 2014 suggests that Mr Hill may, at some point prior to the hearing dated, have
acquiesced in her decision that he not proceed with his application, although as earlier stated
it is not clear whether Mr Hill authorised the contents of that email. It is certainly the case that
since 19 June 2014 Mr Hill has done nothing whatsoever to prosecute his application. Mrs
Hill’s indications that Mr Hill may be suffering from an illness do not adequately explain why
no effort was made by Mr Hill to communicate to the Commission or the respondents that he
would not be attending the hearing, to seek an adjournment, or to respond to the
Commission’s queries as to his intentions.
http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s773.html
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http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#this_act
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[24] The second reason is that I do not consider that Mr Hill’s application has any
reasonable prospects of success. Under s.789FF(1)(b)(ii) of the Act, it is a prerequisite for the
making of an order to stop bullying that the Commission be satisfied that “there is a risk that
the worker will continue to be bullied at work by the individual or group”. On the facts as
stated in Mr Hill’s application, it is clear that the working relationship between himself and L
E Stewart Investments Pty Ltd (the precise nature of which was in dispute) ended on 11
March 2014 and has not resumed since that time. There is nothing in the application or in the
document which Mr Hill filed on 4 June 2014 pursuant to the directions which would provide
any basis for the Commission being satisfied that there is any risk that Mr Hill would continue
to be bullied at work by the respondents. Mr Hill sought to characterise certain conduct
allegedly engaged in since 11 March 2014 by Mr Stewart as bullying, but on no view could
that conduct constitute bullying at work, since as stated no working relationship of any type
involving the respondents has existed since that date. The respondents emphatically denied
the various allegations of bullying made against them by Mr Hill, and the allegations were
never put to the test because Mr Hill did not attend the hearing, but even if Mr Hill had been
able to make out those allegations, he could not have succeeded in obtaining an order to stop
bullying because the s.789FF(1)(b)(ii) requirement could not have been satisfied.
[25] The application is dismissed. The respondents have foreshadowed an intention to
apply for costs. I direct as follows:
(1) The respondents shall file and serve a submission itemising the costs which
they apply for and the basis upon which such costs are sought on or before 5.00pm on
1 August 2014.
(2) Mr Hill shall file and serve any submission in reply to the costs application on
or before 5.00 pm on 8 August 2014.
VICE PRESIDENT
Appearances:
L. Stewart on his own behalf and for L E Stewart Investments Pty Ltd t/a Southern Highlands
Taxis and Coaches
R. Carnachan on his own behalf
N. Matinca on his own behalf
Hearing details:
2014.
Wollongong:
10 July.
OF THE FAIR WORK MISSION THE
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