1
Fair Work Act 2009
s 789FC - Application for an order to stop bullying
Mr Joseph Salama
v
Sydney Trains; Mr Laurence New; Ms Amba Francisco; Mr Charlie
Keech; Ms Kirsty Sweeting
(AB2017/280)
DEPUTY PRESIDENT SAMS SYDNEY, 11 APRIL 2018
Application for an order to stop bullying – various other related proceedings – disciplinary
action – dismissal of applicant – Federal Court proceedings – application to adjourn or stay
proceedings until outcome of Federal Court matter – costs potentially ‘thrown away’ –
prejudice to applicant – whether risk of further bullying when applicant no longer at work –
no prejudice to applicant if he is reinstated in the future – prejudice lies with the four named
individual respondents – lengthy and indeterminate delay – costs not properly quantified – no
guarantee of a costs order – no risk of further bullying – no reasonable prospects of success –
application dismissed.
BACKGROUND
[1] On 21 May 2017, Mr Joseph Salama (‘Mr Salama’ or the ‘applicant’), a Transport
Officer employed by Sydney Trains (‘Sydney Trains’ or the ‘respondent’), filed an
application which sought orders from the Fair Work Commission (the ‘Commission’) to stop
bullying, pursuant to s 789FC of the Fair Work Act 2009 (the ‘Act’). The application named
four management persons, who the applicant alleged had harassed and bullied him while he
was carrying out his duties as a Union delegate and Health and Safety Representative. It was
said that this harassment included threats of disciplinary action in relation to alleged false
allegations made against him.
[2] In accordance with the Commission’s usual protocols, I convened a conference of the
parties on 15 July 2017. At the conference, the applicant appeared with Mr Skundric, a fellow
Union delegate and Ms A Sharp, Solicitor, Bartier Perry, was granted permission to appear
for Sydney Trains and the named respondents, pursuant to s 596 of the Act. No agreement
[2018] FWC 1845
DECISION
E AUSTRALIA FairWork Commission
[2018] FWC 1845
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was reached during the conference as to the substance of the bullying claims and the relief
sought by Mr Salama. On 21 June 2017, the Commission issued directions for a three day
hearing of the substantive application from 25 to 27 September 2017. However, by
application (the ‘strike out application’), dated 5 July 2017, Sydney Trains, sought orders
dismissing the substantive application, pursuant to s 587 of the Act and consequent orders for
costs, pursuant to s 611 of the Act. As a result, I suspended my earlier directions and issued
further directions for the determination of the ‘strike out’ application and deferred any costs
application until the primary application had been determined.
[3] However, the disciplinary processes referred to above continued. On 24 July 2017, the
applicant was issued with a ‘show cause’ letter giving notice that Sydney Trains was
considering terminating his employment due to his failure to improve his behaviour and
conduct. On 1 August 2017, the applicant filed a s 372 General Protections application in
relation to the ‘show cause’ letter (Matter C2017/4221). Then, as a result of the applicant’s
dismissal on 14 August 2017, he filed a s 365 General Protections application on 23 August
2017 (Matter C2017/4667). On 20 September 2017, the applicant’s Solicitor, Mr M Hameed
emailed the Commission in the following terms:
We refer to your letter dated 12 September 2017 addressed to the Solicitor for Sydney
Trains in respect of Case No AB2017/280 (Anti-Bullying Application) (Joseph Salama
v. Sydney Trains and ors.)
We note that the following has occurred:
1. The Applicant was reprimanded for inter alia filing an application against Sydney
Trains seeking stop bullying orders by letter dated 24 July 2017;
2. The Applicant lodged an application for general protections on 1 August 2017;
3. On 14 August 2017 Mr. Salama was terminated from service.
4. On 23 August 2017 Mr. Salama lodged an application for unlawful dismissal
against Sydney Trains.
In view of the authority of Atkinson v Killarney Properties Pty Ltd [2015] FWCFB
6503 at [35], it is contended that termination does render the proceedings nugatory. It
is submitted that the tribunal has discretion to award costs to the Applicant in terms of
Sec 400A of the Fair Work Act read with Section 611 of the same.
We note that it is our intention to seek orders pursuant to costs as against the
Respondent, for the conduct of these proceedings, which may be determinable on the
finalisation of proceedings. This may have complexity in relation to the dockets of the
Tribunal in use.
We respectfully seek that this matter either,
[2018] FWC 1845
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1. Be listed on 4 October 2017 before the Conciliator, for orders in the proceedings.;
2. Be provided an opportunity to put on submissions for a stay until determination of
proceedings in the matters of Cases No. C2017/4221 (Unlawful Dismissal) and
C2017/4667 (General Protection) before Senior Deputy President Hamberger;
3. Listed on a date after 4 October 2017 for further orders.
[4] The s 365 application was listed for conference by telephone on 4 October 2017 before
a Fair Work Commission Conciliator. The conference was unsuccessful, and subsequently a s
368 certificate of unsuccessful conciliation was issued to the parties on 26 October 2017. The
applicant then commenced proceedings in the Federal Court of Australia on 9 November
2017, in which he seeks various orders, including reinstatement (NSDA1977/2017).
[5] On 9 November 2017, I had cause to email the parties as follows:
Deputy President Sams seeks an update from the parties in respect to their intentions
in this matter. More specifically, His Honour requires the applicant to advise
Chambers whether he seeks to press a costs application against the respondent. His
Honour also asks the respondent to advise whether it still seeks to press its application
to dismiss the matter, pursuant to s 587 of the Fair Work Act 2009 (the ‘Act’). If it
does, His Honour is willing to provide the parties with an opportunity to file
submissions in relation to the effect that the applicant’s dismissal may bear upon it.
Please advise Chambers whether either party wishes to file any submissions in this
respect.
His Honour is also aware that the applicant filed a separate s 365 application, in which
a certificate was issued under s 368 of the Act, 14 days ago. The Deputy President
would like to know whether the applicant has filed a general protections application in
the Federal Court of Australia or the Federal Circuit Court of Australia and, if so, what
course of action is proposed in respect to the matters referred to above.
[6] Ms Sharp, for Sydney Trains responded as follows on 17 November 2017:
Email from the Applicant’s lawyer
We note that the Applicant’s lawyer:
1. states “In view of the authority of Atkinson v Killarney Properties Pty Ltd
[2015] FWCFB 6503 at [35], it is contended that termination does render the
proceedings nugatory”. We assume that the word “not” has been inadvertently
omitted.
2. seeks a stay of the instant proceedings (AB 2017/280) (Application).
3. refers to the discretion of the Fair Work Commission to award costs.
[2018] FWC 1845
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Respondent’s position
We are instructed that:
1. the Respondent submits that the decision relied upon by the Applicant does not
operate as a bar to the Fair Work Commission dismissing the Application on
the ground that there is no ongoing risk of bullying: section 789FF(b)(ii) of the
Fair Work Act 2009 (Act)
2. the Respondent seeks a period of 21 days to put on written submissions in
relation to this ground of dismissal to supplement (in the alternative) the
grounds set out in the application to dismiss dated 5 July 2017 as supported by
the written submissions dated 27 July 2017
3. the Respondent opposes a stay of the Application
4. the Respondent opposes any order for costs in favour of the Applicant
[7] On 28 November 2017, Mr Hameed advised the Commission as follows:
In respect of the direction of Hon. Deputy Commissioner to inform the Commission
on the stance of the Applicant in respect of pursuing costs, we have been instructed by
our client that he will be pursuing a costs application against the Respondent.
We respectfully advert [sic] your attention to the issuance of the certificate issued in
terms of s 368 of the Fair Work Act, in respect of the Applicant’s related s.365
application (C2017/4667). Pursuant to such certificate, the Applicant has at present
lodged an application to the Federal Court. (Case No: NSD1977/2017 - JOSEPH
SALAMA v SYDNEY TRAINS T/AS SYDNEY TRAINS & ANOR). The relief
sought in the Federal Court includes reinstatement of service. Should the Hon. Deputy
Commissioner require any documentation in regard to the Federal Court proceedings,
the Applicant would readily furnish the same.
We respectfully submit that the Applicant may well be reinstated in service should an
order to such effect be made by the Federal Court. The Applicant therefore
respectfully submits that it would be appropriate for the proceedings in the said s 372
application to be stayed, pending the Hearing and determination of the Federal Court
Application.
Further, in respect of the matter of costs, we note that given the dismissal of the
applicant, we would contend that if a determination ultimately made in favour of the
Applicant, that costs may be open to the Commission in these proceedings, or if the
matter eventuates to reinstatement, that the merits of this application ought to be
considered by the Commission.
Should the Hon. Commissioner require further submissions on the proposed staying of
proceedings, the Applicant would be grateful for an opportunity to do so.
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[8] To complete the background to this matter, I record that on 23 May 2016, the
applicant had filed a dispute against Sydney Trains, pursuant to s 739 of the Act
(C2016/1296), in which he raised matters going to his eligibility to ‘act up’ in a higher
position in circumstances where he had concurrent and outstanding performance issues. That
dispute was ultimately discontinued after conferences chaired by the Commission.
[9] Given the aforementioned circumstances, the Commission revisited and amended its
earlier directions in respect to Sydney Trains’ amended ‘strike out’ application and listed this
application for hearing on 14 February 2018. At the hearing, Ms E Raper of Counsel with Ms
A Sharp, Solicitor appeared for Sydney Trains and Mr D O’Sullivan of Counsel with Mr M
Hameed Solicitor, Vassili Barristers and Solicitors, appeared for the applicant. Permission
was granted for both parties to be legally represented, pursuant to s 596 of the Act.
Orders sought by Sydney Trains
[10] Sydney Train’s amended ‘strike out’ application seeks orders dismissing the
applicant’s Anti-Bullying proceedings, specifically against the four named respondents, as the
proceedings are vexatious (s 587(1)(b)) and/or have no reasonable prospects of success (s
587(1)(c) of the Act) and orders for costs as the application was made vexatiously and/or
without reasonable cause (s 611(2)(a)) and/or has no reasonable prospects of success (s
611(2)(b)). Further, or in the alternative, in Ground 6, Sydney Trains and the four named
respondents seek the following orders:
(a) That the AB Proceedings be dismissed under section 587(1)(c) of the FW Act on
the ground that the AB Proceedings have no reasonable prospects of success
because:
(i) the worker is not at risk of continued bullying for the purposes of section
789FF(1)(b)(ii) of the FW Act; and
(ii) as a consequence, the Fair Work Commission has no jurisdiction to make an
order under section 789FF(1) of the FW Act;
(b) an order for costs on the grounds outlined above.
SUBMISSIONS
For Sydney Trains
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[11] In oral submissions, Ms Raper focused on the circumstances which overtook Sydney
Trains’ earlier ‘strike out’ application (5 July 2017), namely, the termination of the
applicant’s employment on 14 August 2017. In these circumstances, the applicant cannot
satisfy the Commission he is at risk of future bullying, because has he is no longer employed.
In the result, his Anti-Bullying application is doomed to fail. Ms Raper further submitted that
the applicant’s application for a stay or adjournment of the proceedings is unwarranted and
should be refused.
[12] Ms Raper set out the relevant chronology in support of these contentions. On 18 May
2017, the applicant received a letter from Sydney Trains requiring him to attend a
performance/conduct improvement plan meeting. The purpose of such a plan is to develop, in
consultation with the employee, a plan for improving their performance after discussion about
their conduct. Three days later, the applicant lodged his Anti-Bullying application which
sought an order be made by the Commission to stop any person within the Fair Compliance
Unit (of Sydney Trains) ‘from sending me letters or emails with threats of disciplinary action
while performing his duties as a Union delegate or HSR’. He added this curious threat:
‘Should this continue I believe that individual financial penalties should also apply
due to the seriousness of this matter.’
[13] On 24 July 2017, Sydney Trains sent a further letter to the applicant expressing
ongoing concerns with his performance and requesting him to attend a meeting. In that letter,
he was put on notice that consideration was being given to terminating his employment. On
14 August 2017, when the applicant finally attended a performance meeting, his employment
was terminated later that day.
[14] Ms Raper said that despite Sydney Trains’ Solicitors inviting the applicant to
discontinue his Anti-Bullying application, given he could not be at risk of being bullied, the
applicant had declined to do so. Ms Raper emphasised the architecture of the relevant
statutory provisions as providing a power to the Commission to make orders whilst the
employee remains at work. The Commission’s jurisdiction is protective, rather than punitive,
and is intended to ensure such applications are dealt with promptly. Ms Raper submitted that
even though the Commission’s powers under s 587(1) are discretionary, and not limited by
[2018] FWC 1845
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the matters set out in the section, there remains no arguable case which could successfully be
pursued by the applicant. In addition, by making the orders sought by Sydney Trains, the
Commission will ensure the efficient administration of justice.
[15] Ms Raper put that it seems the applicant does not take issue with the basis of Sydney
Trains’ application that his Anti-Bullying application could be dismissed; but rather, by his
application for a stay or adjournment, he is simply saying ‘not yet’. Ms Raper acknowledged
that there may be circumstances where the Commission would not dismiss an Anti-Bullying
application, but this case is not one of them.
[16] In respect to the applicant’s application for a stay or adjournment, Ms Raper said the
Commission would not so order because:
(a) the Commission is required to perform its functions in a manner which is
‘quick, informal and avoids unnecessary technicalities’ (s 577(b));
(b) the applicant seeks a stay of an indefinite duration where he has not placed before
the Commission any evidence as to the likely time period in which a stay will be
granted;
(c) a respondent to Ant i-Bullying proceedings has a right for the matter to
prosecuted without delay, consistent with the clear legislative intent;
(d) there is little to no prospect that the applicant will be reinstated; and
(e) if the applicant is reinstated;
(i) the costs to him to commence new proceedings are low;
(ii) reinstatement order would not take effect until late 2019, by which time
he would likely not report to any of the individual respondents; and
(f) Sydney Trains will necessarily be prejudiced by delay (particularly of an
indefinite duration) including by reason of the delay heightening the uncertainty and
anxiety for the individual respondents.
[17] Ms Raper emphasised that the Commission’s objectives includes performing its
functions in a manner which is quick, informal and avoids unnecessary technicality. In this
area of the Commission’s jurisdiction, the streamlined process is even greater, so as to ensure
employees are protected at work and managerial prerogative is not stultified. In respect to stay
applications generally, Ms Raper said the starting point is there is something which is
[2018] FWC 1845
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required to be preserved. In this case, no such issue arises as distinct to say, an unfair
dismissal application which might be stayed where criminal proceedings are on foot. If, in the
unlikely event the applicant is reinstated in two or three years time, and he is of the view the
premise of his Anti-Bullying claim remains, he can refile a fresh application, even using this
application, should the circumstances be the same.
[18] Ms Raper further submitted that even where there is something to preserve or protect
by a stay, the Commission would not do so indefinitely. The Commission would be entitled to
know when other proceedings are likely to be heard and be made aware of the likely merits of
those proceedings; namely, the likelihood of reinstatement. There is no issue of this kind here.
[19] Ms Raper rejected the applicant’s claim of being burdened with further costs in
refiling his case – say in two years time. There is a nominal filing fee and he could simply
rely on his existing materials, updated with any contemporaneous evidence. In this case,
where four persons are named respondents it is impossible to speculate what their relationship
with the applicant might be in two years, or if they will be in the same area as the applicant, or
even remain employed by Sydney Trains. There would be a prejudice to them by reasons of
such a delay.
[20] Ms Raper did not refer to the other bases of Sydney Trains’ case, other than relying on
them in the event the Commission is not persuaded to dismiss the application on the primary
grounds recited above.
For the applicant
[21] Mr O’Sullivan relied on his written submissions and a statement filed by the applicant.
As this statement largely sets out the chronology of events, and replicates many of the
documents filed by Sydney Trains, it is not particularly controversial. Understandably, Ms
Raper did not seek to cross examine Mr Salama on it.
[22] Mr O’Sullivan submitted that there is no general rule that s 789FC Anti-Bullying
applications be dismissed when the employee is no longer employed. Each case needs to be
considered in light of its own facts and circumstances; see: Atkinson v Killarney Properties
Pty Ltd & Palm [2015] FWCFB 6503 and Application by Willis [2016] FWC 716 (‘Willis’). It
[2018] FWC 1845
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was said that in Willis the relevant considerations were the efficient administration of justice
and any prejudice to the applicant, if a stay was not granted.
[23] Mr O’Sullivan submitted that these proceedings were commenced eight months ago
and the delay in their determination was occasioned by the deliberate actions of the
respondents. Further, the applicant will be prejudiced if the proceedings are dismissed, as he
has incurred significant costs for issues which have not yet been determined. The
respondents’ submission as to the timing of any order for reinstatement by the Federal Court,
is without basis. Mr O’Sullivan opined that the context of the applicant’s ‘show cause’ letter
and letter of termination provide a reasonable basis to conclude he will ultimately be
reinstated. Lastly, the applicant opposed any order for costs and would wish to be further
heard, if such an application is pressed.
[24] In oral submissions, Mr O’Sullivan rejected the proposition that if the applicant is
ultimately reinstated, he could bring a fresh application, without any prejudice to him. The
distinction to Willis here is that there has been no ventilation of the anti-bullying issues, just a
‘strike out’ application by Sydney Trains.
[25] Mr O’Sullivan referred to the timing of events and the ‘show cause’ letter (of 24 July
2017) issued to the applicant which arose after he lodged the Anti Bullying application (21
May 2017). In fact, the show cause letter states at point 2:
2. On 21 May 2017, you filed an application for an order to Stop Bullying Order
with the Fair Work Commission (Application). You are well within your rights to
file legitimate applications with the Fair Work Commission and other bodies. It is not
acceptable to file vindictive and/or unreasonable applications which impact on the
welfare of Sydney Trains' employees. I have carefully reviewed your Application
and it is my view that:
(a) the Application was filed in direct retaliation to the letter of 18 May
2017 and does not disclose any legitimate allegation of bullying;
(b) the Application was filed to avoid reasonable management action;
(c) so far as concerns Amba Francisco, your allegations are without
foundation, are an attempt to embarrass or harass her, and an attempt
to avoid legitimate performance action;
(d) so far as concerns Tony New, your allegations relate to an alleged
incident in November 2016 which was considered and closed by the
Workplace Conduct and Investigation Unit at that time, your
allegations are without foundation, are an attempt to embarrass or
harass him, and an attempt to avoid legitimate performance action;
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(e) so far as concerns Charlie Keech, your allegations are completely
without foundation, relate to a trivial incident (submitting a reimbursement
form to the value of $28) where your manager informed you that you were
wrong in your assertion about the operation of the policy; and was an attempt
to embarrass or harass him;
(f) so far as concerns Kirsty Sweeting, your allegations relate to an
incident in November 2016 which was concluded by the Workplace Conduct
and Investigation Unit at the time, your allegations were of the utmost
triviality, you have not had any dealings with her since November 2016, and
are an attempt to embarrass or harass her.
In light of this allegation, Mr O’Sullivan submitted that prima facie the applicant’s Federal
Court proceedings have reasonable prospects of success.
[26] In circumstances where the applicant is reinstated then the costs he has expended on
defending the ‘strike out’ application (to date approximately $18,000) will be ‘thrown away’
in full, or at least ‘in part’. Moreover, Sydney Trains may at that later point reagitate another
‘strike out’ application, based on its Grounds one to five in this matter.
[27] Mr O’Sullivan submitted there is no basis for a submission that the applicant’s s
789FC Anti-Bullying proceedings may take some years to be determined. This ignores the
possibility of a settlement of the Federal Court matter which may relate to any stay of these
proceedings. Speculating about whether the named respondents will still be employed, or
have future interaction with the applicant, is unhelpful and should be rejected.
[28] In fairness to Mr O’Sullivan I had this exchange with him as to any prejudice to the
named respondents:
THE DEPUTY PRESIDENT: I want to raise this issue with you because I don't want it
necessarily to be said you are taken by surprise in respect of this, but it had occurred to
me that there are four named employees as respondents to the anti-bullying application.
These are serious allegations.
MR O'SULLIVAN: Yes, your Honour.
THE DEPUTY PRESIDENT: Putting aside those allegations hanging over these
persons, let's say for months because I think that's a realistic assessment.
[2018] FWC 1845
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MR O'SULLIVAN: Yes, the applicant would concede that.
THE DEPUTY PRESIDENT: If any of these employees sought to secure other
employment and were asked by the employer, as is often the case, "Are you involved in
any other proceedings relating to your past employment?" and they say, "Oh, yes",
reluctantly, "I'm a respondent to a bullying application which has not been determined,
it's been stayed", you don't see that as prejudicial to those persons?
MR O'SULLIVAN: Your Honour, in circumstances where that question may be asked,
and I would hazard - I will withdraw that and put it this way, your Honour. Firstly, I am
not aware of employers, and I've been practising in the area of industrial employment
both involving advice and representation of both employers and employees for the best
part of 30 years and it's not a question that I am aware that is asked of prospective
employees. What is asked of - - -
THE DEPUTY PRESIDENT: And if they are involved in workers' compensation
matters.
MR O'SULLIVAN: Yes.
THE DEPUTY PRESIDENT: And bearing in mind the environment we are in now, I
can assure you that people are asked if they have proceedings against their former
employer.
MR O'SULLIVAN: Yes, your Honour, let's imagine that there was such a case that
someone had been asked.
THE DEPUTY PRESIDENT: Yes.
MR O'SULLIVAN: The response, no doubt, would be, your Honour, ‘It was an
allegation which I deny and there's been no findings and no evidence.’
THE DEPUTY PRESIDENT: ‘But it's still hanging around my head.’
MR O'SULLIVAN: Yes, your Honour. Can I say this: if that was a real concern, a
major concern, and is something that should be taken into consideration by the
Commission, why is it not that we have evidence before this Commission? The
applicant has gone to the proper preparation of this case by putting on evidence that you
can consider, is able to be cross-examined on with respect to that, your Honour. You
don't have that. One merely needs to speculate that that's the case, and the fact that that
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evidence is not on, an inference can be drawn that if they were to put on that evidence, it
would not assist their case. That's what we would say to that.
[29] Lastly, I asked Mr O’Sullivan if he drew any distinction between his application for a
stay or an indefinite adjournment; see: the principles set out in Kellow-Falkiner Motors v
Edgehill Print S4126. He agreed there was a difference and proposed relisting this matter after
the Federal Court mediation (listed for May 2018). Mr O’Sullivan could give no further
advice as to when the Federal Court matter might ultimately be listed for hearing, as it would
depend entirely on the procedures adopted by the Judge allocated the matter.
In reply
[30] Ms Raper submitted that Sydney Trains relied on the decision in Willis on two bases.
Firstly, an applicant must prove that there is a real risk of being bullied in the future - not just
a conceptual or hypothetical risk and secondly, that an adjournment for a lengthy or
indeterminate period is not conducive to the efficient administration of justice. The only
apparent certainty here is a mediation in the Federal Court in May with a timetable of further
proceedings all unknown and speculative.
[31] Ms Raper said that merely asserting a prima facie case based on exercising a
workplace right requires an appreciation of the likelihood of reinstatement in the
circumstances of this case. She submitted that Mr Salama’s reinstatement was highly unlikely.
[32] As to the prejudice concerning the applicant’s costs to date, the Commission has no
evidence as to the quantum of costs that make up the approximate figure of $18,000. Where
there has been an Anti-Bullying application and two General Protections matters, all based
around the same issues, and a three page submission in reply to the ‘strike out’ application, it
is difficult to see how $18,000 has been spent. In addition, costs do not follow the event under
the Act and there is a high hurdle to overcome in which success is highly speculative. In any
event, any future Anti-Bullying application can use the resources the applicant had already
garnered in this matter to date. Finally, Ms Raper said that if the Commission is minded to
dismiss this application on the respondent’s sixth ground, then the only costs application must
be in respect to the second ‘strike out’ application and not the first.
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CONSIDERATION
[33] The Commission’s power to dismiss an application are set out generally at s 587 of the
Act. I set out the section below:
SECTION 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.
[34] For the reasons which I will shortly explain, I have decided to accept Ms Raper’s
submission that this matter be decided in accordance within Ground 6 of Sydney Trains
amended ‘strike out’ application of 5 July 2017.
[35] The power of the Commission to dismiss a substantive application should only be
exercised cautiously; see: General Steel Industries Inc v Commissioner for Railways (NSW)
[1964] HCA 69; (1964) 112 CLR 125 at para [8]. This is so because the exercise of such a
power results in the extinguishment of a party’s application, which has been made in order to
seek some form of relief, from a beneficial statutory provision. In other words, the application
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is dismissed before an applicant has had his/her ‘day in court’. That said, s 587 of the Act
does not limit the grounds on which the Commission, of its own motion, may dismiss an
application.
[36] In Ryan v Council of the City of Sydney [2018] NSWSC 265 (the Supreme Court of
New South Wales, Garling J), although in a different statutory context, said at [34] to [37]:
‘34. Under r 13.4 of the UCPR, the Court is entitled to make an order for summary
dismissal where it is satisfied that:
(a) the proceedings are vexatious or frivolous; or
(b) no reasonable cause of action is disclosed; or
(c) proceedings are an abuse of the process of the Court.
35. Making such an order involves the exercise of a discretion. It is well settled that in
exercising any power given to the Court under the UCPR, the Court is obliged to
further the overriding purpose which is set out in s 56 of the Civil Procedure Act 2005.
That overriding purpose obliges the Court to facilitate the just, quick and cheap
resolution of the real issues in the proceedings.
36. In addition to the general overriding purpose which must guide my discretion,
specific principles apply to summary dismissal.
27. The test to be applied by a court when considering whether to summarily dismiss
proceedings has been clearly established by the High Court. The following principles
will guide the Court’s judgment:
(1) every litigant, prima facie, has the right to have all matters of law and fact
decided at a hearing. The Court should not exercise its power to deprive a
litigant of that right unless the plaintiff's claim is so obviously untenable that it
cannot possibly succeed: Burton v Shire of Bairnsdale [1908] HCA 57; (1908)
7 CLR 76 at 92, per O'Connor J;
(2) before summary disposal can be justified, the case must be a very clear one,
in which there is no real question of fact or law to be determined at a final
hearing: Dey v Victorian Railway Commissioners [1949] HCA 1; (1949) 78
CLR 62 at 91, per Dixon J;
(3) the applicable test when considering summary dismissal of an action has
been variously expressed as “hopeless”, “so obviously untenable that it cannot
possibly succeed”, “manifestly groundless”, or “so manifestly faulty that it does
not admit of argument”: General Steel Industries Inc v Commissioner for
Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 128-9;
(4) the exercise of power to summarily terminate proceedings requires the
Court to have a high degree of certainty about the ultimate outcome of the
proceedings if it were allowed to go to trial in the ordinary way, and must be
approached with great caution: Agar v Hyde [2000] HCA 41; (2000) 201 CLR
http://www.austlii.edu.au/au/legis/nsw/consol_act/cpa2005167/
[2018] FWC 1845
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552 at [57] per Gaudron, McHugh, Gummow and Hayne JJ; Spencer v The
Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 at [24], per
French CJ and Gummow J.’
[37] Notwithstanding the above general considerations, it seems to me that the power to
dismiss an Anti-Bullying application must be viewed through the prism of the statutory
provisions underpinning the Commission’s powers to order relief under its Anti-Bullying
jurisdiction. That being so, it is necessary to set out the relevant statutory provisions set out
below:
[38] Section 789FC of the Act provides as follows:
(1) 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.
(2) For the purposes of this Part, worker has the same meaning as in the Work Health
and Safety Act 2011 , but does not include a member of the Defence Force.
Note: Broadly, for the purposes of the Work Health and Safety Act 2011 , a worker is
an individual who performs work in any capacity, including as an employee, a
contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining
work experience or a volunteer.
(3) The application must be accompanied by any fee prescribed by the regulations.
(4) The regulations may prescribe:
(a) a fee for making an application to the FWC under this section; and
(b) a method for indexing the fee; and
(c) the circumstances in which all or part of the fee may be waived or
refunded.
[39] Section 789FD of the Act defines bullying conduct as follows:
‘When is a worker bullied at work?
(1) A worker is bullied at work if:
(a) while the worker is at work in a constitutionally-covered business:
(i) an individual; or
[2018] FWC 1845
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(ii) a group of individuals;
(a) repeatedly behaves unreasonably towards the worker, or a group of
workers of which the worker is a member; and
(b) that behaviour creates a risk to health and safety.
(2) To avoid doubt, subsection (1) does not apply to reasonable management
action carried out in a reasonable manner.
(3) If a person conducts a business or undertaking (within the meaning of the
Work Health and Safety Act 2011) and either:
(a) the person is:
(i) a constitutional
corporation; or
(ii) the Commonwealth; or
(iii) a Commonwealth authority; or
(iv) a body corporate incorporated in a Territory; or
(b) the business or undertaking is conducted principally in a Territory or
Commonwealth place;
then the business or undertaking is a constitutionally-covered business.’
[40] Section 789FE of the Act provides as follows:
‘FWC to deal with applications promptly
(1) The FWC must start to deal with an application under section 789FC within 14
days after the application is made.
Note: For example, the FWC may start to inform itself of the matter under section 590,
it may decide to conduct a conference under section 592, or it may decide to hold a
hearing under section 593.
(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
[2018] FWC 1845
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(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.’
[41] The capacity of the Commission to make orders is set out in s 789FF of the FW Act as
follows:
‘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.’ [underlining added]
[42] It follows that the Commission may issue orders to stop bullying, only in
circumstances where there is a risk that a worker who has been bullied at work, is at future
risk that they will be bullied at work. As Mr Salama was dismissed from his employment
there is a line of authority which establishes that in these circumstances, the employee cannot
meet the requirements of s 789FF(b)(ii) such that the Commission’s jurisdiction might be
enlivened.
[43] In Shaw v Australia and New Zealand Banking Group Limited [2014] FWC 3408,
Gostencnik DP said at [15] to [17]:
[2018] FWC 1845
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‘[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.’
[44] In Atkinson v Killarney Properties Pty Ltd & Palm [2015] FWCFB 6503, the Full
Bench of the Commission said at [32], [33] and [35]:
‘[32] We are not persuaded the decisions in Shaw and Obatoki are plainly wrong.
[33] Both Shaw and Obatoki concerned the FWC dismissing a s.789FC application
under s.587(1)(c) of the FW Act. In each case, the FWC formed the view that the
s.789FC application had no reasonable prospects of success as the applicant was no
longer “at work” and, therefore, a pre-requisite for the making of a s.789FF order did
not exist. Having formed that view, the FWC then went on to exercise its discretion
under s.587(1)(c) of the FW Act to dismiss the s.789FC application.
[35] In this decision, we are not suggesting that it will always be appropriate for the
FWC to dismiss a s.789FC application where an employee is dismissed from their
employment. Depending on the circumstances in each case there may be a number of
relevant considerations, including the prospect of reinstatement through other
proceedings, which could warrant the FWC dealing with a s.789FC application
notwithstanding the dismissal of the employee.’
[2018] FWC 1845
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[45] As both Counsel relied on Willis, it is appropriate to refer to the following lengthy
passage from the decision at [15] to [22]:
‘[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
[2018] FWC 1845
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by mandating that the Commission start dealing with such an application within 14
days after the application is made. 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.’
[footnotes omitted]
See also: Application by Michael, Vinay [2018] FWC 905.
[46] In my view, the decision in Willis is ‘on all fours’ with the factual circumstances of
this case. Of particular resonance is that:
(a) An adjournment or stay in this case, is on any view, likely to be lengthy and
indeterminate because of the pending Federal Court proceedings. Granting a stay or an
adjournment in these circumstances is inconsistent with the efficient administration of
justice; particularly given the clear statutory mandate that these applications are to be
dealt with promptly (s 789FE);
(b) If the applicant succeeds in the Federal Court and is reinstated, he will be free to make
another Anti-Bullying application if he believes he will be at risk of being bullied at
work;
(c) There is nothing to prevent the applicant from relying on the current alleged bullying
conduct, or any new conduct, to make ‘good the other jurisdictional prerequisites’, if
he was to be reinstated.
[47] Given the above, I am satisfied there would be no real prejudice suffered by the
applicant in these circumstances. In addition to these matters, I intend to address two other
considerations which have figured in my determination of this ‘strike out’ application.
[48] Firstly, in my opinion, there will be real prejudice to the four named respondents if
these proceedings are adjourned or stayed for some lengthy, indeterminate period. It should
not be lost sight of that named individuals in Anti-Bullying applications are respondents to
[2018] FWC 1845
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serious and public legal proceedings in which they are - for better or worse - labelled as
alleged bullies. It usually becomes well known in the workplace that these persons are facing
legal action to have them confirmed as bullies in the workplace. The epithet may stick, even if
there is no substance to the allegations – as the saying goes ‘if you throw enough mud at the
wall, some of it will stick’. The vast majority of alleged bullies in proceedings of this kind are
mid-level supervisers, managers or team leaders who are doing no more than carrying out
their supervisory duties. Usually, this is reasonable management action carried out in a
reasonable manner. Invariably however, a resultant Anti-Bullying application is directly
associated with an applicant’s adverse performance issue or a warning given for poor
performance or behaviour. On many occasions, I have observed named respondents, who are
themselves seriously and adversely impacted by being named as alleged bullies, sometimes
displaying high levels of stress, anxiety and distress, even psychological damage.
[49] I hasten to add that I am in no position to make findings about whether the applicant’s
bullying allegations are valid or not. No case has been run; let alone any evidence properly
tested. I am simply observing that it seems to me that the prejudice in this case rests primarily
on the named respondents who will have to wait for many months, without being given an
opportunity to defend the bullying allegations against them, (which I note they strenuously
deny). I also refer the reader to a scenario I described when I raised this matter with Mr
O’Sullivan in the proceedings; see; para [28] above.
[50] Respectfully, I do not accept Mr O’Sullivan’s answer to my concern that the
Commission might review the stay or adjournment application after the Federal Court
mediation in May 2018 as the matter may be settled. Given the current disposition of Sydney
Trains and the respondents’ trenchant rejection of the allegations by the applicant, I consider
Mr O’Sullivan’s optimism to be problematic and unsatisfactory.
[51] Secondly, in addressing Mr O’Sullivan’s submission as to the prejudice to the
applicant by the costs being ‘thrown away’ to date, if his application for reinstatement
succeeds, three observations can be made.
1. The applicant has provided no evidence of the details of the legal costs he has
expended to date, totalling around $18,000. If such an argument is to be given serious
consideration the onus rests on the applicant to provide a schedule of costs. He did not
[2018] FWC 1845
22
do so. Mr Salama does not appear to have engaged a lawyer (Mr Hameed, Vassili
Barristers and Solicitors) until sometime on or around 9 August 2017, (although no
Notice of Representative Commencing to Act has been filed by Vassili Barristers and
Solicitors in this application). Up to that point, the applicant appeared to be
represented, or at least assisted by a fellow employee delegate, Mr Andrew Skundric.
2. For my own part, I have some reservations in accepting that this Anti-Bullying
application (filed by a fellow Union delegate) and two General Protections
applications, all in substance dealing with the same set of circumstances, would have
incurred legal costs of around $18,000. If the Commission’s schedule of costs was
applied to these legal activities, it is difficult to imagine the total of costs reaching
anything like $18,000.
3. More significantly, Mr O’Sullivan’s submission seems to presume that any application
for costs by his client, even if he was wholly successful, will result in a costs order
being made. As the statutory underpinning of the Act (s 611(1)) involves the general
principle that parties to all proceedings under the Act pay their own costs, (that is,
costs ‘do not follow the event’), a presumption of success as to costs, given the limited
exceptions in s 611 of the Act, is a brave presumption to make.
[52] I unreservedly accept that there is no ‘general rule’ in the Commission’s Anti-Bullying
jurisdiction which requires a ‘strike out’ application to succeed where the applicant is no
longer at work. However, I am satisfied that the circumstances of this case, overwhelmingly
compel such an outcome.
[53] Accordingly, I order that Matter AB2017/280 be dismissed as having no reasonable
prospects of success under s 587(1)(c) of the Act and in the exercise of my general discretion
under s 587, which does not limit when the Commission may dismiss an application. An order
to this effect will be issued simultaneously with this decision.
[2018] FWC 1845
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DEPUTY PRESIDENT
Appearances:
Ms D O’Sullivan of Counsel with Mr M Hameed Solicitor (Vassili Barristers and Solicitors).
Ms E Raper of Counsel with Ms A Sharp Solicitor (Bartier Perry).
Hearing details:
2018.
Sydney:
February 14.
Printed by authority of the Commonwealth Government Printer
PR601594
ORK WORK COMMISSION FAIR THE SEAL OF
