[2015] FWCFB 1661
The attached document replaces the document previously issued with the above code on 27
March 2015 has had paragraph numbers amended and typographical errors in the preamble.
Shomaice Zowghi
Associate to Vice President Catanzariti.
Dated 27 March 2015.
1
Fair Work Act 2009
s.604 - Appeal of decisions
Obatoki
v
Mallee Track Health & Community Services and Others
(C2014/8084)
VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT SMITH
COMMISSIONER BLAIR
SYDNEY, 27 MARCH 2015
Appeal against decision [2014] FWC 8828 and Order [PR558708] of Deputy President Kovacic
at Melbourne on 5 December 2014 in matter number AB2014/1169.
[1] This is an appeal by Dr Olusegun Victor Obatoki (the Appellant) against a decision1
(Decision) and an order2 (Order) of Deputy President Kovacic in relation to an application
that the Appellant made under s.789FC of the Fair Work Act 2009 (the Act) seeking an order
to stop bullying.
[2] The Deputy President dismissed the Appellant’s application pursuant to s.587 of the
Act on the basis that the application had no reasonable prospects of success.
[3] At the hearing of the appeal on 11 March 2015, the Appellant was not represented. Mr
Tracey of Counsel, sought permission to appear on behalf of the Respondents. The Appellant
made no submissions in opposition. Permission was granted to Mr Tracey pursuant to
s.596(2)(a) of the Act, on the basis that, although the matter was not significantly complex, it
would be dealt with more efficiently if permission to be represented was granted. Further,
permission was also granted on the basis that the issues raised on appeal had not been
considered by a Full Bench.
Background
[4] The Appellant was employed by the Respondents as a medical practitioner who
provided medical services to Mallee Track Health and Community Services (Mallee Track)
under a services contract between Mallee Track and a company, Dove Investment (Australia)
Pty Ltd (Dove Investments). The Appellant is the sole director and secretary of Dove
Investments and the sole provider of services.
[5] On 9 April 2014 the Applicant filed an application under s.789FC of the Act seeking
an order to stop bullying in accordance with Part 6-4B of the Act. In his application, The
Appellant alleged that he had been bullied by Mallee Track, its Chief Executive Officer, Mr
John Senior and its Director of Nursing, Ms Pamela Vallance (together the Respondents). On
[2015] FWCFB 1661
DECISION
AUSTRALIA FairWork Commission
[2015] FWCFB 1661
2
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 Respondent.
[6] Hearing of the application commenced on 3 September 2014 and continued on 15
October 2014. Following the hearing, the matter was awaiting further listing. On 6 November
2014 the Respondent’s legal representative sent an email to the Commission advising that on
29 October 2014, Mallee Track had terminated its service contract with Dove Investments. As
a consequence, the Appellant was no longer working at the Mallee Track Medical Clinic or
providing on call services. A subsequent teleconference was held on 10 November 2014
where it was not disputed that Mallee Track had terminated the contract with Dove
Investments and Dr Obatoki was no longer working at the Mallee Track Medical Clinic.
[7] In circumstances where the employment relationship had ceased during the hearing of
an application for an order to stop bullying, the question before the Deputy President then
became whether the Commission had the power to continue to deal with the matter and make
an order to stop bullying. His consideration of the issue and the relevant statutory framework
is concisely summarised in the decision below as follows:
“[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
[2015] FWCFB 1661
3
reasonable prospects of success. Further, s.587(3)(a) of the Act provides that the
Commission may dismiss an application on its own initiative.
[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). 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.
[8] An order was subsequently issued on 5 December 2014 by the Deputy President that
the application lodged by Dr Obatoki under s.798FC of the Act be dismissed.
Permission to Appeal
[9] Section 604(1) of the Act requires the permission of the Commission in order to
appeal a decision made by the Commission. In order to grant the Appellant permission to
appeal, the Full Bench must be satisfied that it is in the public interest to do so.3 In
GlaxoSmithKline Australia Pty Ltd v Colin Makin4 a Full Bench of the Commission identified
some of the considerations that may attract the public interest:
“...the public interest might be attracted where a matter raises issues of importance and
general application, or where there is a diversity of decisions at first instance so that
guidance from an appellate court is required, or where the decision at first instance
manifests an injustice, or the result is counter intuitive, or that the legal principles
applied appear disharmonious when compared with other recent decisions dealing with
similar matters...”
[10] We are satisfied that this matter raises issues of importance and general application
and thus enlivens the public interest. The proper approach to the application of s789FF of the
Act in circumstances where the employment relationship has ceased is an issue that has
previously only been considered by single member authorities.5. We are of the view that this
is particularly warranted given that the application of this provision will go to issues of the
Commission’s jurisdiction.
[2015] FWCFB 1661
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[11] Permission to appeal is granted.
The Appeal
[12] The grounds of appeal as outlined in the Appellant’s written submissions are as
follows:
“1. The termination of an employment or contract of service does not automatically
mean an application does not have any reasonable prospects of Success in all cases.
Indeed the Act does not state that.
2. The Commission have the powers to issue an order before a matter is fully heard
when it becomes obvious that bullying act is ongoing. Alternatively, an interim order
can be given when it is evinced that bullying is ongoing to prevent the sufferings of
the applicant.
3. The commission has the powers to withdraw a permission granted a legal
representative when it becomes evidence that the legal representative is not making the
procedure efficient.”
[13] At the appeal hearing, the Appellant made a further oral submission that pursuant to
s.789FF(1), the Deputy President had the power to make other orders such as
recommendations or referrals. The Appellant submitted that in addition to stop bullying
orders, the Deputy President had the power “to make a recommendation and to refer matters
to appropriate authorities to carry out supervisory role of certain Acts, for instance, the Work
and Health Safety Act”6.
[14] In the Respondents’ written submissions, it is said that only ground one of the
Appellant’s submissions is remotely relevant to the decision below and we agree with this
position. In respect of ground one, the Respondents characterised the statutory framework of
s.790FC and s.789FF in much the same way as the Deputy President:
“On a plain and natural reasoning of the provision, it is clear that there are two
jurisdictional prerequisites of which the Commission must be satisfied before it has the
power to make an order to stop bullying: that the worker making the application under
s 790FC of the FW Act has been bullied at work by an individual or group of
individuals: and, relevantly, that there is a risk that the same worker will be continued
to be bullied at work by the individual or group.
When the Appellant ceased to be engaged by Mallee Track and ceased working at its
premises or providing services for it (which required some dealings between the
Appellant and the Respondents), there was, as the Deputy President found (Decision at
[14]), no risk that the Appellant “will continue to be bullied at work by the
Respondents”.
Having considered the undisputed fact of the termination of the Appellant’s services
and asked himself whether the Appellant’s application has reasonable prospects of
success - all of which he did in accordance with the Act - the Deputy President held
that there were no reasonable prospects that the application could succeed, in that an
[2015] FWCFB 1661
5
order to stop bullying could be made, because the Commission could not be satisfied
that the second of the two jurisdictional prerequisites could be met.”
[15] Mr Tracey of counsel also made oral submissions in reply to the Appellant’s
submissions regarding the power of the Commission to make recommendations or referrals
pursuant to s.789FF(1). Mr Tracey submitted that making an order (regardless of whether it
was a stop bullying order) a recommendation, a referral or otherwise, was not an option open
to the Deputy President because the second limb of s 789FF must be satisfied to enliven the
jurisdiction. Given that the second jurisdictional prerequisite was not met, an order of any
kind could not be made by the Deputy President.
Consideration
[16] We consider that the Deputy President correctly held that there were no reasonable
prospects that the application could succeed. The Commission could not be satisfied that the
second of the two jurisdictional prerequisites of s.789FF(1) could be met. There was no
evidence before the Commission indicating that there would be a risk that the Appellant
would continue to be bullied at work once he ceased to be engaged by Mallee Track and
ceased working at its premises or providing services for it. It necessarily follows that no order
pursuant to s.789FF(1) could be made and the application had no reasonable prospects of
success.
[17] It is worth noting, as did the Deputy President in the decision below7, that there is
nothing to preclude the Appellant, 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.
[18] Regarding the oral submissions made by the parties in respect of the Commission’s
power conferred by s.789FF(1) to make orders including those containing recommendations
and referrals, for the avoidance of doubt, we note that s.789FF(1) confers upon the
Commission a wide discretion in relation to the types of orders it can make (“any order it
considers appropriate”). It is not simply stop bullying orders that can be made by the
Commission but also orders which have a rational connection to the jurisdiction. The only
prohibition on the types of orders that can be made is pecuniary orders, that is, orders for
monetary compensation to be payable to an application.
[19] The Explanatory Memorandum to the Fair Work Amendment Act 20138 provides
some examples of the orders that the Commission may make::
Requiring the individual or group of individuals to stop the specified behaviour;
Regular monitoring of behaviours by an employer;
Requiring compliance with an employer’s workplace bullying policy;
The provisions of information and additional support and training to workers;
Requiring review of the employer’s workplace bullying policy.
[20] The broad discretion of the Commission to make different types of orders was
illustrated in Applicant v Respondent PR5488529 where Senior Deputy President Drake made
orders by consent placing the following restrictions upon the employee who was the alleged
bully:
[2015] FWCFB 1661
6
“1. Shall complete any exercise at the employer’s premises before 8.00 am.
2. Shall have no contact with the applicant alone.
3. Shall make no comment about the applicant’s clothes or appearance.
4. Shall not send any emails or texts to the applicant except in emergency
circumstances.
5. Shall not raise any work issues without notifying the Chief Operating Officer of the
respondent, or his subordinate, beforehand.”
[21] However, we note that the power to make such orders will only be enlivened once the
two limbs of s.789FF(1) have been satisfied, that is, that the worker making the application
has been bullied at work by an individual or group of individuals: and that there is a risk that
the same worker will be continued to be bullied at work by the individual or group. Given that
the second limb was not satisfied in this matter, the Deputy President did not have the power
to make any of the types of orders contemplated by s.789FF.
Conclusion
[22] We have granted permission to appeal and for the reasons outlined above we find no
error in the decision of the Deputy President and accordingly the appeal is dismissed.
VICE PRESIDENT
Appearances:
O V Obatoki on his own behalf.
J R M Tracey of Counsel for the Respondents.
Hearing details:
2015
Sydney and Melbourne (video hearing)
March 11.
Printed by authority of the Commonwealth Government Printer
Price code C, PR561850
1 Obatoki v Mallee Track Health & Community Services and Others [2014] FWC 8828.
2 Obatoki v Mallee Track Health & Community Services and Others [PR558708].
3 Fair Work Act 2009, s.400(1).
THE FAIR WORK COMMISSION THE SEAA
[2015] FWCFB 1661
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4 [2010] FWAFB 5343 at [27].
5 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank and Another [2014] FWC 3408; Ravi v Baker
IDI Heart and Diabetes Institute Holdings Limited and Others [2014] FWC 7507; G.C. [2014] FWC 6988; Hayward v
Department of the Environment and Others [2014] FWC 9444; P.K. [2015] FWC 562; Jackson [2015] FWC 402.
6 Transcript, 11 March 2015, Sydney and Melbourne, PN50.
7 Obatoki v Mallee Track Health & Community Services and Others [2014] FWC 8828 at [21]
8 Fair Work Amendment Act 2013 at [120]
9 (21 March 2014)
