1
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Olusegun Victor Obatoki
v
Mallee Track Health & Community Services and Others
(AB2014/1169)
DEPUTY PRESIDENT KOVACIC MELBOURNE, 5 DECEMBER 2014
Application for an FWC order to stop bullying - Applicant no longer working with
Respondents - 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 9 April 2014 Dr Olusegun Victor Obatoki (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 his application, Dr Obatoki alleged that he had been
bullied by Mallee Track Health and Community Services (Mallee Track), its Chief Executive
Officer, Mr John Senior, and its Director of Nursing, Ms Pamela Vallance (together the
Respondents). On 11 August 2014 the Fair Work Commission (the Commission), determined
to add a further person, the President of the Board of Mallee Track, Mr Keith Erhardt, as a
Respondent1. The decision to add Mr Erhardt as a Respondent followed a request made by
Dr Obatoki (see also paragraph [6] below).
Background
[2] Dr Obatoki is a medical practitioner who provided medical services to Mallee Track
under a services contract between Mallee Track and a company, Dove Investments (Australia)
Pty Ltd, of which Dr Obatoki is the sole director and secretary and the sole provider of
services. Although not directly relevant to this application, it is worth noting that a number of
contractual issues between the parties were the subject of separate mediation by a third party
earlier this year.
[3] In their Form F73 - Response from an employer/principal to an application to stop
bullying, submitted on 17 April 2014, the Respondents expressed a number of jurisdictional
objections to the application.
[4] The application was the subject of a conference on 28 May 2014. The conference
concluded on the basis that the parties would have further discussions regarding revised hours
of work/working arrangements for Dr Obatoki and the revised remuneration arrangements
that may flow from that. At that conference the Commission made it clear that, were the
1 PR554136
[2014] FWC 8828
DECISION
E AUSTRALIA FairWork Commission
[2014] FWC 8828
2
matter to be relisted, it would need to deal with the jurisdictional issues raised by the
Respondents prior to considering whether or not to make an order under s.789FC of the Act.
[5] The discussions which ensued from the conference failed to result in a mutually
acceptable resolution.
[6] The application was then listed for a mention and programming teleconference on
6 June 2014. Two further issues were dealt with at that teleconference. First, a request by
Dr Obatoki for permission to amend his application to add an additional respondent,
Mr Erhardt, and second, the Respondents’ request to be represented by a lawyer. In respect of
the first issue, I decided to defer consideration of the request pending determination of the
Respondents’ jurisdictional objections. As to the second issue, I determined to grant
permission to the Respondents to be represented by a lawyer2. That decision was
unsuccessfully appealed by Dr Obatoki3.
[7] The application was subsequently listed for a jurisdictional conference/hearing on
23 July 2014.
[8] At the conference on 23 July 2014 the Respondents did not press their jurisdictional
objections. The conference concluded on the basis that the parties would consider a number of
options aimed at addressing some of the underlying issues. However, none of these options
proved acceptable to the parties and the matter was again listed for teleconference on
6 August 2014 for directions regarding the substantive hearing of the application.
[9] Hearing of the application commenced on 3 September and continued on 15 October
2014. After the latter hearing, the matter was awaiting further listing when on 6 November
2014 the Respondent’s legal representative, Mr Tallboys, sent an email to the Commission
advising that:
“... on 29 October 2014 Mallee Track Health and Community Services had terminated
its service contract with Dove Investments (Australia) Pty Ltd. As a consequence, the
Applicant is no longer working at the Mallee Track Medical Clinic or providing on call
services.
Given this development is relevant to the Commission’s power to make an order to
stop bullying, we believe it appropriate to draw this to your attention.”
[10] A teleconference of the parties was convened on 10 November 2014 where it was not
disputed that Mallee Track had terminated the contract of Dove Investments (Australia) Pty
Ltd as of 29 October 2014 or that Dr Obatoki was no longer working at the Mallee Track
Medical Clinic or providing on call services to Mallee Track. In those circumstances, the
Commission informed the parties that it has no power to issue an order as one of the threshold
requirements for an order under s.789FF of the Act, i.e. there is a risk that the worker will
continue to be bullied at work, no longer existed. The Commission indicated that it would
therefore give consideration to dismissing the application.
2 PR552379
3 [2014] FWCFB 4297
[2014] FWC 8828
3
[11] In subsequent developments, Dr Obatoki wrote to the Commission on 24 November
2014 inquiring as to the status of the Commission’s consideration and foreshadowing his
intention to pursue the matter further by any means available to him.
The statutory framework
[12] 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 matters that relate to:
(a) Australia’s defence; or
(b) Australia’s national security; or
(c) an existing or future covert operation (within the meaning of
section 12E of the Work Health and Safety Act 2011) of the Australian Federal
Police; or
(d) an existing or future international operation (within the meaning of
section 12E of the Work Health and Safety Act 2011) of the Australian Federal
Police.
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:
[2014] FWC 8828
4
(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.” [Underlining added]
Consideration of the issues
[13] In short, where an application is made under s.789FC of the Act, the Commission has
the discretion under s.789FF of the Act 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. However, the Commission can only exercise that discretion 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.
[14] In this case there is no dispute that Dr Obatoki has made an application under s.789FC
of the Act. The question of whether or not Dr Obatoki has been bullied at work is yet to be
determined by the Commission, with that aspect only part-heard at this stage. However, given
that Dr Obatoki is no longer working at the Mallee Track Medical Clinic or providing on call
services, there is clearly no risk that Dr Obatoki will continue to be bullied at work by the
Respondents.
[15] As such, the question becomes whether the Commission should continue to deal with
the application or alternatively dismiss the application. To continue to deal with the
application in circumstances where the Commission does not have the power to make an
order because one of the threshold requirements can no longer be met would be an
unnecessary and unreasonable impost on the parties. Accordingly, consideration needs to be
given to dismissing the application. I turn now to that issue.
[16] 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 “For another power of the FWC to dismiss applications under section 789FC, see
section 587.”
[17] Section 587(1) of the Act sets out a number of grounds on which the Commission may
dismiss an application. The most relevant in the context of the matter currently before the
Commission is set out at s.587(1)(c), i.e. that the application has no reasonable prospects of
success. Further, s.587(3)(a) of the Act provides that the Commission may dismiss an
application on its own initiative.
[2014] FWC 8828
5
[18] 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)4. The circumstances in ANZ are
similar to those in the matter before me in that the applicant in that case, 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.”
[19] Given the similarity of the circumstances in this matter and ANZ, I see no reason to
depart from the approach adopted by Deputy President Gostencnik in ANZ and will dismiss
the application on my own initiative.
Conclusion
[20] For the reasons outlined above I have decided to dismiss Dr Obatoki’s application on
the basis that it has no reasonable prospects of success. An order to that effect will be issued
with this decision.
[21] It is worth noting, that the decision to dismiss Dr Obatoki’s application does not
preclude Dr Obatoki, should he return to work at Mallee Track at some future point, from
making another application under s.789FC subject to the jurisdictional facts being established
in relation to that application.
Appearances:
O. Obatoki on his own behalf.
B. Tallboys for the Respondent.
4 [2014] FWC 3408 at paragraphs [8]-[11]
WORK THE FAIR Kodque - AUBTITALIA DEPUNPRESIDENT NOIS THE
[2014] FWC 8828
6
Hearing details:
2014.
Melbourne (telephone conference):
November 10.
Printed by authority of the Commonwealth Government Printer
Price code C, PR558707
