1
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Mr James Willis
v
Capital Radiology Pty Ltd T/A Capital Radiology; Ms Peita Carroll; Ms
Marie Gibson; Mr Dominik Kucera
(AB2015/416)
DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 4 FEBRUARY 2016
Application for an FWC order to stop bullying; application to dismiss pursuant to
s.587(1)(c); whether application for order has no reasonable prospect of success; whether
application should be adjourned pending hearing and determination of Federal Circuit Court
proceedings; application to dismiss granted.
[1] By application lodged on 2 July 2015, Mr James Willis (Applicant) seeks an order to
stop bullying pursuant to s.789FC of the Fair Work Act 2009 (Act). The Applicant alleges
that he has been bullied at work during his employment with Capital Radiology Pty Ltd
(Capital Radiology). He alleges that he has been subjected to bullying at work by Mr Dominik
Kucera, Ms Peita Carroll, Ms Marie Gibson and Mr Kim Vuu, each of whom is employed by
Capital Radiology. These employees together with Capital Radiology are hereafter
collectively referred to as the ‘Respondents’.
[2] The Applicant’s employment with Capital Radiology was terminated summarily on 14
July 2015. On 17 July 2015, the Respondents applied for the dismissal of Mr Willis’ bullying
application pursuant to s.587(1) of the Act on the ground that that application has no
reasonable prospects of success.
[3] The Applicant has commenced a proceeding in the Federal Circuit Court
(MLG1997/2015) in which he alleges, inter alia, that Capital Radiology, in respect of the
dismissal of his employment took adverse action against him in contravention of s.340 of the
Act. Pursuant to Orders made by Judge Jones on 9 October 2015, that application is fixed for
trial commencing 5 September 2016.
[4] The relevant remedy in respect of bullying applications is an order which the
Commission considers appropriate ‘to prevent the worker from being bullied at work by the
individual or group’. If other jurisdictional prerequisites have been met, the discretion to make
an order is only exercisable if, relevantly, the Commission is satisfied that:
the worker has been bullied at work by an individual or a group of individuals; and
[2016] FWC 716
DECISION
E AUSTRALIA FairWork Commission
[2016] FWC 716
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there is a risk that the worker will continue to be bullied at work by the individual or
group.1
[5] Assuming that there is satisfaction of the first limb, there must be satisfaction of a risk
that the worker will ‘continue’ to be bullied ‘at work’ by the individual or group responsible
for the bullying identified in the first limb. It is readily apparent from the terms of s.789FF
that if I am satisfied that an applicant (worker) has been bullied at work by an individual, or
group of individuals, the relevant enquiry then focuses on whether there is a risk that the
applicant (worker) will continue to be bullied at work by the individual or group of
individuals. It seems to me, that in assessing whether there is a relevant risk, the risk that the
applicant will continue to be bullied at work by the individual or group of individuals
although not imminent, must be real, and not merely a conceptual or hypothetical, risk.
[6] Section 587 of the Act provides a discretion to dismiss an application if, inter alia, the
application has no reasonable prospect of success. Without traversing the authorities that have
considered the proper application and meaning of the phrase, ‘no reasonable prospect of
success’, it is sufficient to make the following observations.
[7] 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 substance as to be not
reasonably arguable. These examples do not provide an exhaustive description of the
circumstances when an application has no reasonable prospect of success.
[8] In Spencer v The Commonwealth of Australia,2 consideration was given to 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 the plurality (Hayne, Crennan, Kiefel and Bell JJ) 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
1 Section 789FF(1)(b).
2 (2010) 241 CLR 181.
[2016] FWC 716
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its application is read as confined to cases of a kind which fell within the earlier different
procedural regimes.’3
[9] 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. Therefore, in the context of a legislative power to dismiss as that found in s.587 of the
Act one should not make the mistake of confining the circumstances in which the phrase ‘has
no reasonable prospect of success’ might apply to those that are frivolous, untenable,
groundless or faulty and that full expression should be given to that phrase.
[10] 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.
[11] The power to dismiss in s.587 is exercisable in relation to ‘an application’. This raises
the question of the nature of the application the Applicant has made. In the context of the
Commission’s anti-bullying jurisdiction, the answer is to be found in s.789FC, which
provides that a worker ‘who reasonably believes that he or she has been bullied at work may
apply to the FWC for an order under section 789FF’. In assessing whether ‘the application’
for an order under s.789FF ‘has no reasonable prospects of success’, it is plainly necessary to
consider whether each of the preconditions for the making of an order under that section
might be able to be made out.
[12] It is uncontroversial that the Applicant’s employment with Capital Radiology has
ended, though the question whether it took place in contravention of the Act remains
contentious. It is also not in contention that the Applicant’s Federal Circuit Court application
seeks reinstatement as a remedy and that the court has the discretionary power to grant the
remedy if the Applicant succeeds in establishing a contravention. So far as is relevant for
present purposes the question whether the Applicant’s bullying application has no reasonable
prospect of success must be answered, having regard to the statutory provisions contained in
Part 6-4B of Chapter 6 of the Act, the provisions under which the Applicant’s application is
made, and taking into account the facts as presently known, those that are not disputed, and
taking the Applicant’s case at its highest. Put simply, is there some reasonable prospect that
the Applicant will be able to persuade me to make an order under s.789FF?
[13] As already indicated, s.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 the meaning of the phrase ‘bullied at work’. That a
person who seeks an order has made an application under s.789FC 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. That this has occurred is not in dispute.
[14] That a person who has made an application has been bullied at work by an individual
or a group of individuals is another of the matters about which I must be satisfied. This is in
3 Ibid at [59] – [60].
[2016] FWC 716
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dispute and will likely be hotly contested. For the purposes of this application to dismiss, I
think it appropriate to assume without deciding that the Applicant 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 identified in his application. On this basis, two of the three prerequisites in
s.789FF(1) to making an order would be satisfied.
[15] However, as s.789FF(1)(b) makes clear, I must also be satisfied that there is a risk that
the Applicant will continue to be bullied at work by that individual or group of individuals.
Without satisfaction of the existence of a risk of continued bullying at work of the applicant
by the individual or group there is an absence of power to make an order.
[16] As the Applicant has been dismissed and is no longer employed by Capital Radiology
it cannot now be concluded that there is a risk that the Applicant will continue to be bullied at
work by the individual or group. There is no real risk of that eventuality. That has been the
case since 14 July 2015 and continues to be the case as at the date of this decision.
[17] The Applicant is taking steps to seek a remedy in relation to his dismissal by Capital
Radiology and that may, if he succeeds, result in reinstatement at some point in the future.
However, that case will not be heard by the Federal Circuit Court until September 2016 with a
decision still later in time. As things presently stand (and would stand if I were to hear and
determine this matter over the next few months) the prospect of the Applicant being ‘at work’
with Capital Radiology is speculative or hypothetical, as is the risk of continued bullying at
work of the Applicant by the individual or group. As a matter of fact, the Applicant is not and
will not be at work with Capital Radiology. There cannot therefore be a risk that the Applicant
will continue to be bullied at work by an individual or group of individuals as identified in his
application, because he is no longer employed by Capital Radiology and is no longer at work.
That position will pertain for the foreseeable future.
[18] It necessarily follows that I do not have power to make an order to stop bullying and,
as a consequence, I am satisfied that the Applicant’s application for an order under s.789FF
has no reasonable prospect of success.
[19] Each case of this kind will turn on its own peculiar facts. It should not be assumed that
it will always be appropriate to dismiss an application for an order under s.789FF because the
worker has been dismissed. In some circumstances it may be appropriate to adjourn a
proceeding instead of dismissing it or to proceed with determining the other preconditions in
s.789FF before considering the question of risk of continued bullying at work.
[20] I have given consideration to both these possible courses of action but I have
concluded that neither course is appropriate in the present circumstances. If I were to proceed
to determine the matter, I would likely face the same question concerning risk in a few
months. At that point the conclusion would be the same. The efficient administration of
justice is not served by this course and resources of the parties would be unnecessarily
expended.
[21] An adjournment for a period that is both lengthy and presently indeterminate is also
not conducive to the efficient administration of justice. Cases of this kind should be
determined with reasonable expedition. Certainly, the legislature had this in mind by
mandating that the Commission start dealing with such an application within 14 days after the
[2016] FWC 716
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application is made.4 Moreover, in the event that the Applicant succeeds before the Federal
Circuit Court and he is reinstated, he is free to make another application if he believes there is
a risk of continued bullying and it seems to me, there is nothing to prevent the Applicant
relying on the conduct currently alleged in this application to make good the other
jurisdictional fact requirements. As such, no real prejudice is suffered by the Applicant, and
there will be no material delay in dealing with a new application on that basis when compared
to the delay in determining this application if it were adjourned, pending the hearing and
determination of the Federal Circuit Court proceeding.
[22] I am therefore of the opinion that the application for dismissal of the Applicant’s
application for an order under s.789FF should be granted. An order dismissing the
Applicant’s application for an order under s.789FF is separately issued in PR576691.
DEPUTY PRESIDENT
Appearances:
Mr J. Willis in person.
Ms C. Symons of Counsel on behalf of the Respondent.
Hearing details:
Melbourne.
2016.
January 28.
Printed by authority of the Commonwealth Government Printer
Price code A, PR576690
4 Section 789FE(1).
WORK COMMISSION THE SEAL OF
