1
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Dr Say Teong Ng
(AB2019/104)
COMMISSIONER HAMPTON ADELAIDE, 11 JUNE 2019
Application for an FWC order to stop bullying – applicant dismissed from employment –
application by respondent employer for stop-bullying application to be dismissed under
s.587(1)(c) of the FW Act – whether reasonable prospects of success given statutory
requirements for an order to be made given the future risk import of s.789FF(1)(b) – factors
for Commission to consider discussed – particular circumstances of this case assessed – not
presently satisfied that no reasonable prospects of success demonstrated – matter of
discretion does not arise – application adjourned with liberty to apply.
1. What this decision is about
[1] On 5 March 2019, Dr Say Ng made an application for a stop-bullying order (the stop-
bullying application) under s.789FC of the Fair Work Act 2009 (FW Act). The application
contends that a number of individuals engaged by the Commonwealth Science Industrial and
Research Organisation (CSIRO) have behaved unreasonably so as to constitute workplace
bullying. Those allegations are disputed. The CSIRO and the individuals named in the
application are collectively the respondent parties in the stop-bullying matter.
[2] As a result of the termination of Dr Ng’s employment on 19 March 2019, CSIRO
ultimately sought to have the stop-bullying application dismissed by the Commission under
s.587(1) of the FW Act on the basis that the application had no reasonable prospects of
success (the s.587 application). Put briefly, the s.587 application is founded on the contention
that as Dr Ng has been dismissed and was no longer in the workplace, there was no basis to
make an order because there was no foreseeable future risk of relevant workplace bullying.
[3] Dr Ng opposes the s.587 application and contends that the stop-bullying application
should be held in abeyance pending the outcome of an application he has made under s.394 of
the FW Act (the unfair dismissal application). The unfair dismissal application was scheduled
for a conciliation conference to be conducted on behalf of the Commission on 17 May 2019.
[4] The parties have subsequently reported that the unfair dismissal application was not
resolved at conciliation and that it will now be subject to hearing and determination by
another arm of the Commission.
[5] This decision deals with the s.587 application.
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DECISION
E AUSTRALIA FairWork Commission
[2019] FWC 3055
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2. The cases advanced by the parties
2.1 CSIRO
[6] CSIRO contends1 that the stop-bullying application should be dismissed, rather than
held in abeyance, on the following grounds:
The application has no prospects of success as without Dr Ng being a worker in the
relevant workplace there is no basis upon which any remedy could be considered
under s.789FF of the FW Act;
Although Dr Ng has made an unfair dismissal application, that application is being
strongly contested and any reinstatement arising from that application was
speculative and hypothetical as found by the Commission in some other similar
matters;
There is no prejudice to Dr Ng as he would be entitled to lodge a fresh stop-
bullying application and there would be no material additional delay associated
with the listing of any substantive hearing from such an application;
The application cites four individuals and holding an application of this nature in
abeyance against them would be prejudicial to them; and
The prejudice to the individuals named and the absence of prejudice to Dr Ng mean
that the interests of justice should lead to the application being dismissed.
[7] CSIRO referred to a number of decisions of the Commission relying upon these
considerations in what it described as being apropos of this matter. It also sought to make
further submissions about its other contentions – that the allegations made by Dr Ng would
not constitute bullying conduct for the purposes of s.789FD of the FW Act – in the event that
the application was not dismissed at this point.
[8] In supplementary submissions, CSIRO contended that Dr Ng’s submissions and other
materials associated with the unfair dismissal application had been distributed and displayed
in the applicant’s former workplace. This, it stated, had a profound negative impact upon the
named CSIRO officers and the CSIRO connected this to the judgement to be made by the
Commission as to whether the stop-bullying application should be dismissed.2
2.2 Dr Ng
[9] Dr Ng contends that his stop-bullying application should, as a compromise, be held in
abeyance and not dismissed on the following basis:
The “unfair dismissal” was the ultimate decision made by one of the individuals
cited in the application and was their “apparently hidden aim in achieving and
protecting various vested interests”;
1 CSIRO written submissions, 19 April 2019.
2 CSIRO supplementary submissions, 31 May 2019.
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The dismissal was unfair and harsh and the unfair dismissal application is now
before the Commission awaiting adjudication; and
Dr Ng was seeking reinstatement and was hopeful of returning to work at the
CSIRO, and thereby returning as a worker.
[10] Dr Ng also made the following submissions potentially going to the Commission’s
discretion in this matter:
“Holding in abeyance is a compromise, given the ongoing psychological damages I am
still suffering from and having to confront them by the days. I felt that I am constantly
living in a state of being emotionally fearful of the bullies ganging up again, impacting
my submitted unfair dismissal application. It has ruined my confidence in the sort of
justice I used to believe.
… …
I am worried that if your acknowledgement to hold this application in abeyance is
dismissed, it will set a precedence to allow the bully the power to sack any employee
first at their disposal (regardless of whether the dismissal is fair or not, once their
vested interest was undermined). The applicant will be shaken, blocked, victimised
and left with no voice to raise as a result of helplessness. The bullying case might as
well be subsumed, given hurdle with hidden motive like this are hard to deal as a plain
individual.
… …
Holding my application in abeyance is not (seeking) a remedy, but an
acknowledgement. It is potentially a preventative measure against tentative followed-
on abuses. Bearing in mind that the matter is not yet at the state of asking for the
commissioner’s decision to stop the bullying.
There is a certainty that the waiting time will be short, given the effectiveness of Fair
Work Commission. I certainly want to see that the unfair dismissal be sorted out
sooner, so that everyone could move on.
I would like to submit that whether or not my unfair dismissal application is
speculative, it should be the decision of Fair Work Commission – not the
representative of the bullies. Without this (resolution), it defeats the purpose of having
the Fair Work involvement.”3
[11] In relation to the CSIRO’s supplementary submissions, which contended that materials
related to the applicant’s unfair dismissal applicant had been displayed in the workplace,
Dr Ng posited, in effect, that there were no confidentiality requirements made by the
Commission, he had been assisted in preparing his unfair dismissal submissions by a “handful
of scientists”, and he had been barred from accessing the workplace since October 2018.
Dr Ng also questioned the CSIRO’s motives in raising the issue.
3 Dr Ng’s written submissions 2 May 2019 at 24 to 26.
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[12] Despite an opportunity to do so,4 neither party sought to lead evidence or have a
hearing conducted in relation to the immediate issue. As a result, I have determined the matter
based upon the written submissions and the circumstances evident from the application and
the response documents lodged in the stop-bullying matter, without making any findings
about the substantive merit of the positions outlined in the application and response
documents.
3. Consideration
[13] I observe that for reasons outlined below, some of the propositions raised by the
Dr Ng5 about the implications of a decision to dismiss the stop-bullying application, and the
message that might be sent to those allegedly involved in the workplace, are not matters that
bear upon the determination of this present matter. The same applies to his characterisations
of the alleged conduct and the parties involved and I have given them no weight in
determining this present matter. However, other matters that he raises about the potential
interaction with the unfair dismissal application and the broad propositions raised by the
CSIRO to support its s.587 application are relevant to this matter for reasons also discussed
below.
[14] The capacity for the Commission to dismiss an application on the basis that it has no
reasonable prospects of success is provided by s.587(1)(c) of the FW Act in the following
terms.
“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.
4 This was expressly canvassed at the preliminary conference and general liberty to apply, including to seek a hearing in
relation to the s.587 application, was granted by the Commission.
5 Including some not expressly set out in this Decision.
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(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.”
[15] The provision establishes a discretion to dismiss an application by virtue of the
expression “may”. Subject to the limitations in subsection (2), that discretion arises when the
Commission is satisfied that one (or more) of conditions in subsection (1) have been met.
[16] In the context of a stop-bullying application, this may arise from the preconditions for
the making of such an order set out in s.789FF(1) 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.
(2) … …”
[17] In Obatoki,6 the Full Bench was dealing with an appeal where the applicant worker
was no longer in the relevant employment relationship and the anti-bullying application had
been dismissed by the Commission. The Full Bench concluded as follows:
“[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.”
6 Olusegun Victor Obatoki [2014] FWC 8828.
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[18] I note that in Obatoki, there is no indication that the appellant (the applicant in the
original matter) had made an unfair dismissal application or that this was considered.7 In the
earlier case of Shaw v ANZ,8 cited by the Full Bench in Obatoki, the applicant had made such
an application and this did not, in that case, impact on the assessment of the reasonable
prospects of success.9
[19] The general approach adopted in Obatoki was endorsed by a subsequent Full Bench in
Atkinson v Killarney Properties Pty Ltd10 with what I consider to be an important caveat
expressed in the following terms:
“[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.”
[20] When considered in context, this caveat must potentially inform both the finding that
there is no reasonable prospect of success and the exercise of any discretion that arises.
Further, it emphasises that the dismissal of a stop-bullying application does not automatically
follow the dismissal of an applicant worker from their employment and that the particular
circumstances of each case must be considered in that regard.
[21] The import of the phrase “no reasonable prospects of success” has also been
considered in a variety of contexts. When used in the application of the costs provisions in
s.611(2)(b) of the FW Act, the Commission has adopted the approach that “a conclusion that
an application ‘had no reasonable prospect of success’ should only be reached with extreme
caution in circumstances where the application is manifestly untenable or groundless or so
lacking in merit or substance as to be not reasonably arguable.”11
[22] Although adopted in the context of the costs provision, which is relevant factor, it is a
principle of statutory construction that where a phrase or expression is used in different
sections of the same Act, it will generally have the same meaning, subject to any express
exception to the contrary.
[23] In Wright v Australian Customs Service12 the AIRC, under predecessor legislation13
discussed the approach of the Commission to the assessment that ‘no reasonable prospects of
success’ exist, and said:
7 See also Olusegun Victor Obatoki [2014] FWC 8828.
8 [2014] FWC 3408.
9 Ibid at [8].
10 [2015] FWCFB 6503.
11 Brian Clothier v Ngaanyatjarra Media [2012] FWAFB 6323 at [15].
12 (2002) AIRC PR926115, cited with approval by the Full Bench in Keep v Performance Automobiles Pty Ltd [2015]
FWCFB 1956 at [19].
13 Workplace Relations Act 1996 – dealing with its then unfair dismissal jurisdiction under s.170CE.
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“[23] In our view, the act of issuing of a certificate under s.170CF(4) should be
considered in its proper context. That context is an application by an employee
under s.170CE of the WR Act. Section 170CE(1) entitles an employee to seek relief in
respect of the termination of that employee's employment. Subject to the existence of
the requisite jurisdiction and merit, that relief may be obtained, depending upon the
ground upon which the claim is based, from either the Commission or a court of
competent jurisdiction. The exercise of the power conferred by s.170CF(4) is one that
brings proceedings in the Commission to an end in a summary way. The legislative
intention, in our view, is to provide the Commission with a means of terminating at an
early stage applications which, in so far as they relate to the ground specified
in s.170CE(1)(a), are manifestly untenable or groundless. It is important to note that
the issue before the Commission in such circumstances is not whether the applicant
would probably succeed in the substantive application against the employer. It is
whether the material before the Commission demonstrates that the substantive
application should not be permitted to go to a hearing in the ordinary way because it is
apparent that it must fail.
[24] In this respect, the exercise of the power may be seen to be similar, if not
equivalent, to the exercise of the power of a court to terminate an action summarily for
want of a cause of action. The power of a court to do so may arise from an inherent
jurisdiction or from statute or the court's own rules. In the case of the Commission, the
power to issue a certificate and thus bring an end to the application, at least in relation
to the ground that the termination was harsh, unjust or unreasonable, arises from the
WR Act. The effect of the exercise of the power by the Commission is the same as the
effect of the exercise of a court's power to summarily dismiss an application.
[25] In General Steel Industries Inc v Commissioner for Railways (N.S.W.) and
Others (General Steel), Barwick CJ accepted that "the jurisdiction summarily to
terminate an action is to be sparingly employed and is not to be used except in a clear
case where the Court is satisfied that it has the requisite material and the necessary
assistance from the parties to reach a definite and certain conclusion". His Honour
went on to state –
"It is sufficient for me to say that these cases uniformly adhere to the view that
the plaintiff ought not to be denied access to the customary tribunal which
deals with actions of the kind he brings, unless his lack of a cause of action - if
that be the ground on which the court is invited, as in this case, to exercise its
powers of summary dismissal - is clearly demonstrated. The test to be applied
has been variously expressed; "so obviously untenable that it cannot possibly
succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit
of argument"; "discloses a case which the Court is satisfied cannot succeed";
"under no possibility can there be a good cause of action"; "be manifest that to
allow them" (the pleadings) "to stand would involve useless expense".
At times the test has been put as high as saying that the case must be so plain
and obvious that the court can say at once that the statement of claim, even if
proved, cannot succeed; or "so manifest on the view of the pleadings, merely
reading through them, that it is a case that does not admit of reasonable
argument"; "so to speak apparent at a glance".
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As I have said, some of these expressions occur in cases in which the inherent
jurisdiction was invoked and others in cases founded on statutory rules of court
but although the material available to the court in either type of case may be
different the need for exceptional caution in exercising the power whether it be
inherent or under statutory rules is the same. Dixon J. (as he then was) sums
up a number of authorities in Dey v. Victorian Railways Commissioners (1949)
78 CLR 62 where he says (at p.91): "A case must be very clear indeed to justify
the summary intervention of the court to prevent a plaintiff submitting his case
for determination in the appointed manner by the court with or without a jury.
The fact that a transaction is intricate may not disentitle the court to examine a
cause of action alleged to grow out of it for the purpose of seeing whether the
proceeding amounts to an abuse of process or is vexatious. But once it appears
that there is a real question to be determined whether of fact or law and that
the rights of the parties depend upon it, then it is not competent for the court to
dismiss the action as frivolous and vexatious and an abuse of process."
Although I can agree with Latham C.J. in the same case when he said that the
defendant should be saved from the vexation of the continuance of useless and
futile proceedings (at p 84), in my opinion great care must be exercised to
ensure that under the guise of achieving expeditious finality a plaintiff is not
improperly deprived of his opportunity for the trial of his case by the appointed
tribunal. On the other hand, I do not think that the exercise of the jurisdiction
should be reserved for those cases where argument is unnecessary to evoke the
futility of the plaintiff's claim. Argument, perhaps even of an extensive kind,
may be necessary to demonstrate that the case of the plaintiff is so clearly
untenable that it cannot possibly succeed."
[26] In Fancourt and Another v Mercantile Credits Limited, the High Court observed
that the "power to order summary or final judgment is one that should be exercised
with great care and should never be exercised unless it is clear that there is no real
question to be tried". Further, in Webster and Another v Lampard, the High Court said
that "[n]owhere is that need for exceptional caution more important than in a case
where the ultimate outcome turns upon the resolution of some disputed issue or issues
of fact".
[27] That a similarly strict test should be adopted by this Commission in the exercise
of its powers under s.170CF(4) gains support from the decision of the Full Court of the
Federal Court in Paul Barbaro v Human Rights & Equal Opportunity Commission and
Another. The Court was there concerned with an appeal from an order summarily
dismissing an application for judicial review. The primary judge had dismissed the
application for judicial review on the basis that "there was no reasonable prospect of
the substantive application succeeding". Referring to the decision in General Steel, the
Full Court stated that the test to be applied in such cases "is a strict one designed to
ensure that claims that may possibly have merit are not summarily dismissed". The
Court went on to find that "the primary Judge had the appropriate strict test in mind
when he found that the application for judicial review had `no reasonable prospect of
success'". It would, therefore, appear that the strict test for determining whether or not
an application for judicial review should be summarily dismissed is, as is the case for
the issue of a s.170CF(4) certificate, whether the substantive application has no
reasonable prospect of success. This is the term that is used in s.170CF(4) to describe
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the conclusion that the Commission must reach before an obligation arises to issue the
requisite certificate.” (references and footnotes omitted)
[24] What all of this means is that the cessation of the employment or contractual
relationship may provide a context in which the stop-bullying application has no reasonable
prospects of success by virtue of the import of s.789FF(1)(b) of the FW Act. This is not a
reflection upon the substantive merit (or otherwise) of that application (s.789FF(1)(b)(i)), but
rather, consideration only of whether there is the absence of one of the (other) prerequisites
for the making of any orders from such an application due to the fact that the applicant is no
longer a worker at potential risk in the relevant workplace (s.789FF(1)(b)(ii)). However, in
making that assessment the Commission must consider whether there is any other context in
which the applicant might, as a worker, be subject to the risk of future workplace bullying
conduct in the relevant workplace.
[25] Such a context could include where the applicant already has other work where they
are likely to be involved in the relevant workplace in that capacity, or in my view, where there
is some identifiable prospect that the applicant will return to the workplace as a worker as a
result of some other intervention, such as a reinstatement order made by the Commission14 or
by the Court.15 In that regard, this could well arise when an applicant had actually made a
timely relevant application and was genuinely seeking that particular form of remedy. The
prospect of these events occurring must certainly be something more than mere speculation;
however, for reasons outlined above, the findings that there are no reasonable prospects of
success is not a finding to be made lightly.
[26] Further, if there is a finding of no reasonable prospects, the dismissal of an application
under s.587 of the FW Act remains a matter of discretion and each case must be considered
on its merits.
[27] Accordingly, any attempts by an applicant worker to contest a dismissal or the
cessation of the relationship are relevant; however in order to be more than speculation, the
applicant would need to be genuinely and actively pursuing reinstatement as the remedy
through some relevant application that had been made. This is relevant to the finding as to
whether, or not, there are no reasonable prospects of success. Further, the impact upon other
parties, including the individuals named in the application and the employer/principal are also
relevant considerations in the case management of a stop-bullying matter including any
decision to dismiss it on the grounds raised here.16 These latter considerations, and the fact
that an applicant can make a fresh stop-bullying application should circumstances change, are
relevant to the discretion, but not to the assessment of whether there are no reasonable
prospects of success present in the extant application.
[28] In this case, Dr Ng was dismissed by CSIRO after the stop-bullying application had
been filed and the Commission had commenced to deal with the application, but before any
determinative proceedings had been conducted. I draw no inference from the sequence of
14 Section 391 of the FW Act.
15 Section 545(2)(c) of the FW Act, as an example.
16 See also Simon Ketenci v Commissioner for Public Employment and Others [2018] FWC 2299 and Joseph Salama v
Sydeny Trains and others [2018] FWC 1845 in this regard.
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events here, other than that the Commission has not formed any view about the objective
merit of that application or the response provided by the respondent parties. Further, in the
circumstances, with one potential exception, there is also no probable basis upon which Dr Ng
will return to the workplace in any capacity as a worker. Dr Ng’s unfair dismissal application
is however an important consideration bearing upon that prospect and this is directly relied
upon by him to suggest that his stop-bullying application not be dismissed at this point.
CSIRO contend that the potential outcomes of the unfair dismissal application are speculative
and uncertain and should not be considered in the present context.
[29] As expressly confirmed during proceedings in this matter, Dr Ng is actively seeking
reinstatement to his former position at the CSIRO. Further, I have also been advised that his
unfair dismissal application is now due to be heard and determined by the Commission.
Although the proportion of reinstatements in the Commission’s unfair dismissal jurisdiction is
relatively low and the CSIRO is strongly opposing that outcome in Dr Ng’s case, I am not
satisfied to the required degree that in the context of this matter he has no reasonable
prospects of success in the stop-bullying application by virtue of his dismissal. Whether he is
ultimately successful in the unfair dismissal application and is reinstated is a matter for that
arm of the Commission to determine. Further, a finding that he will not be reinstated, or rather
there is no reasonable prospect of this occurring, is not a finding that can appropriately be
made by this arm of the Commission at this juncture.
4. Conclusions
[30] Given these findings I am not satisfied at this point that there is no reasonable prospect
that a basis to satisfy the second limb of s.789FF of the FW Act can be established. This in
turn impacts upon the assessment of whether there is no reasonable prospect that the stop-
bullying application can succeed.
[31] It is important to emphasise that this decision is not a reflection upon the substantive
merit of the stop-bullying application and this has not yet been heard. This also does not
reflect a lack of appreciation for the consequences for the respondent parties and for reasons
outlined earlier, should I have found that there was no reasonable prospects of success,
considerations of that type would have been influential in any discretion to be exercised.17 In
that regard, I observe that the recent CSIRO allegations about certain materials being
apparently distributed in the applicant’s workplace involved the unfair dismissal application. I
do not underestimate the potential impact of any such material upon the individuals involved
and to the extent that there is any suggestion that the continuation of the stop-bullying matter
is relevant to whatever occurred, the Commission might be approached to make direct orders
about how any materials relevant to that application are to be treated pending any potential
hearing.
[32] I am also alert to the fact that circumstance’s surrounding the unfair dismissal matter
may change at any point up to and including a decision being made by the Commission. This
could provide a basis to revisit this application. Further, although my initial view is not to
make arrangements to hear the stop-bulling application at this point, I also consider that the
17 See Mekuria v MECCA Brands Pty Ltd t/a Mecca Cosmetics and others [2019] FWCFB 1093 at [19](3).
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respondent parties should be at liberty to more fully advance their proposition that this should
occur given my conclusions.
[33] As a result, this application is to be held in abeyance, with general liberty given to the
parties to apply as foreshadowed above.
COMMISSIONER
Appearances:
S Ng, the Applicant on his own behalf.
B Maloney with K Ritchie, on behalf of Commonwealth Science Industrial and Research
Organisation.
Conference details:
2019
Adelaide (By Telephone)
April 4.
Final written submissions:
19 April, 30 and 31 May 2019 – CSIRO
2 May and 5 June 2019 – Dr Ng
Printed by authority of the Commonwealth Government Printer
PR707956
WIR MARK COMMISSION AUSTRALIA T THE SEAL OF THE FAI