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Fair Work Act 2009
s 789FC - Application for an order to stop bullying
Applications by Hien, Le; Sankey, Joseph; Soy, Bora
(AB2019/139) (AB2019/140) (AB2019/141)
DEPUTY PRESIDENT SAMS SYDNEY, 19 JUNE 2019
Application for an FWC order to stop bullying – application for interim orders to prevent
pending disciplinary action – disciplinary matters unrelated to alleged bullying – whether
serious issue to be tried – balance of convenience – no evidence that applicants will be
dismissed – management prerogative – balance of convenience favours employer – interim
orders refused – further programming.
[1] Given the urgency of this application, my decision will obviously not be lengthy or
complex. I have taken all the parties’ submissions into account, reviewed all of the material
which has been filed in the matters to date, and reflected on the conferences with the parties.
The decision was issued ex tempere on 14 June 2019 and is now edited and published as
follows.
[2] This matter concerns joint applications for stop bullying orders filed on 19 March
2019 by Mr Hien Le, Mr Michael Sankey and Ms Bora Soy, pursuant to s 789FC of the Fair
Work Act 2009 (the ‘Act’). The respondents to the applications are the St Vincent de Paul
Society (the ‘Society’) and six of its Senior Managers, although the allegations of bullying
seem largely directed towards Ms Sue Chillingworth – Metro Region Accommodation
Manager of the Society - from the time she became the applicants’ Manager. The applicants
are Senior Support Workers with lengthy periods of service ranging from 11-24 years. At the
time the applications were lodged, the applicants were engaged at the Matthew Talbot Hostel
in Woolloomooloo.
[3] Relevantly, the applications were lodged following show cause letters issued to each
of the applicants in October 2018 about unrelated conduct issues. A Performance
Improvement Plan had been put in place in respect to one of the applicants. The applicants
[2019] FWC 4274
DECISION
E AUSTRALIA FairWork Commission
[2019] FWC 4274
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have been represented at all relevant times by the Australian Municipal, Administrative,
Clerical and Services Union (the ‘Union’).
[4] There have been several listings of these matters before the Commission. The
applications came before me for conference on 1 April 2019. Mr Coluccio from the Union
represented the applicants, and Ms P Thomson from the Australian Federation of Employers
and Industries (‘AFEI’) represented the respondents. The purpose of that listing was for the
Commission to consider an application, filed by the Union, in which it sought orders
restraining the employer from imposing any disciplinary sanction on the applicants until the
determination of their stop bullying applications. Mr R Coluccio contended that the
disciplinary action proposed, and the process itself, were essential components of the bullying
claims of the applicants.
[5] It is pertinent to observe that the applicants’ complaints of bullying had been the
subject of an internal investigation in February/March 2019, which found no bullying could
be substantiated. It is apparent that the investigation and disciplinary process were occurring
concurrently, but it was strongly maintained by the Society that they were completely
different and separate matters. On the other hand, the Union asserted that the employer’s
bullying investigation was fundamentally flawed and wrong.
[6] As a holding position, at the conclusion of the 1 April 2019 conference, I issued the
following recommendation (see Print 706441):
‘[1] An independent third party investigation be conducted into the bullying allegations
raised by the three applicants, Mr Le, Mr Sankey and Ms Soy. Given the Commission
has not been provided with a copy of the internal investigation report, and obviously
has taken no evidence in these matters, this recommendation should, in no way be
viewed as endorsing or otherwise accepting the report’s conclusions or the Union’s
claim that the internal investigation must be flawed.
[2] No further steps shall be taken by the employer in respect to the disciplinary action
already commenced or actions proposed to be taken against the applicants, until the
report of the independent investigation has been considered and responded to by the
employer.
[3] Liberty to apply at short notice is available to the parties in respect to any further
informal, procedural or formal proceedings, including any request for the making of
interim orders arising from the proceedings in that respect last Monday, 25 March
2019.’
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[7] It is plain from the second recommendation that all disciplinary processes were
suspended until an independent investigation could occur, after which the Society could
consider and respond to the report. It did not mean that the disciplinary process was
suspended until the applicants had another opportunity to challenge any findings in the report
with which they disagreed.
[8] My recommendation was accepted by the Society, and an independent investigator
was appointed. The Investigator’s report dealt only with the applicant’s allegations against Ms
Chillingworth. This was criticised by the Union because it did not include an investigation
into the bullying allegations against the six other respondents (including the Society itself).
The report found no bullying of the applicants by Ms Chillingworth could be substantiated.
Unhappy with this outcome, and having not been provided with a copy of the report, the
matters were relisted on 12 June 2019, and an agreement was reached that the report would be
provided on a confidential basis to the Union, with redacted versions provided to the
applicants.
[9] However, at 2.57pm on 13 June 2019, the Union pressed for urgent orders effectively
restraining the employer from taking any further steps in the disciplinary process, including
termination of employment. These proposed orders were:
1. That the respondent be restrained from terminating the employment of the
applicants for a period of three months to allow the matters to be heard by the
Commission; or
2. In the alternative, that the respondent be restrained from terminating the
employment of the applicant for a period of two weeks to allow the Commission
further time to engage with this matter and express a view if it pleases; or
3. In the alternative, that the respondent be restrained from terminating the
employment of the applicants indefinitely;
4. Ihe orders made by the Commission may be varied or revoked by application of
any party to the Commission at short notice or by the Commission on its own
initiative; and
5. Any other order the Commission sees fit.
[10] Much of Mr Coluccio’s submissions focused on the history of the matter prior to the
two investigations. This is not the primary focus of the stop bullying jurisdiction of the
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Commission. The Commission’s powers to make orders are forward-looking – it is a power to
consider whether there is a prospective risk of bullying. Two of the applicants remain at work,
and apart from the claim of the disciplinary action itself being bullying, no further incidents -
at least involving Ms Chillingworth - have recently been reported.
[11] The primary submission of Mr J Stanton (from AFEI, on behalf of the Society) was
that there was no evidence from persons who are said to support the Union’s case and no
evidence of the applicants’ financial circumstances (in the event they have to pursue unfair
dismissal applications). He claimed the orders sought are oppressive and without any
evidentiary basis to support them. Moreover, the Society had all times willingly attended and
participated in Commission proceedings over a period of three months, and accepted
recommendations of the Commission, particularly the recommendation of 1 April 2019.
Principles in respect to the grant of interim orders
[12] There is no doubt the Commission has the power to make interim orders in respect to
stop bullying applications. Section 589(2) of the Act does not limit the Commission’s powers
to particular classes of applications filed under the Act; see: Bayly [2017] FWC 1886 and
Worker A, Worker B, Worker C, Worker D and Worker E v Automotive, Food, Metals,
Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing
Workers' Union; Communications, Electrical, Electronic, Energy, Information, Postal,
Plumbing and Allied Services Union of Australia and others listed in Schedule A [2016] FWC
5848.
[13] The principles to be applied in such circumstances are well established and are often
referred to as the prima facie tests of whether firstly, there is a serious question to be tried,
and secondly, whether the balance of convenience favours an order for interim relief. In
Quinn v Overland [2010] FCA 799, Bromberg J set out at [45] and [46] the two main
considerations as follows:
‘[45] In determining an application for interlocutory relief, the Court addresses two
main inquiries. First, whether the applicant has made out a prima facie case in the
sense that if the evidence remains as it is, there is a probability that at the trial of the
action the applicant will be held entitled to relief. Second, whether the inconvenience
or injury which the applicant would be likely to suffer if an injunction were refused
outweighs or is outweighed by the injury which the respondent would suffer if an
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injunction were granted: Australian Broadcasting Corp v O’Neill (2006) 227 CLR 57
at [65], [19].
[46] The requirement of a “prima facie case” does not mean that the applicant must
show that it is more probable than not that the applicant will succeed at trial. It is
sufficient that the applicant show a sufficient likelihood of success to justify in the
circumstances the preservation of the status quo pending the trial. How strong the
probability needs to be depends upon the nature of the rights the applicant asserts and
the practical consequences likely to flow from the order the applicant seeks. In that
context there is no objection to the use of the phrase “serious question” to convey the
strength of the probability: Australian Broadcasting Corp v O’Neill per Gummow
and Hayne JJ at [65]-[72], Gleeson CJ and Crennan J agreeing at [19].’’
CONSIDERATION
[14] Without going to the detail of the allegations of misconduct and/or poor performance
against the applicants, or whether the conduct is such as to warrant dismissal, in my view,
such conduct is unconnected and unrelated to the nature of the bullying allegations against Ms
Chillingworth, which have been now found by two investigations to be unsubstantiated.
Whether such conduct, or any other conduct, is found by the Commission to constitute
bullying for the purposes of the Act, is not relevant at this stage. I have heard no such case,
nor issued any directions for a hearing. Relevant witnesses who the Union claims were not
interviewed can, no doubt, be called in a full hearing.
[15] At this point, the question arises, however, if there is a serious issue to be tried, in
circumstances where two bullying investigations have said there is not (albeit this is strongly
disputed by the Union) and more importantly, for present purposes, whether the Commission
should interfere in the employer’s prerogative to institute disciplinary proceedings which
might result in dismissal, and for which the applicants will have recourse to other provisions
of the Act to challenge the fairness of such dismissals. I have recently said that it is not
acceptable to use the stop bullying jurisdiction of this Commission as a shield or ‘stalking
horse’, to prevent, delay or deflect justifiable disciplinary outcomes, or to claim that the
disciplinary outcomes themselves are repeated unreasonable behaviour, constituting bullying.
It demeans and undermines the important work of the Act’s stop bullying provisions to
prevent workplace bullying; see: Karki [2019] FWC 3147.
[16] I emphasise that even if the applicants are dismissed, there is no automatic rule that
their stop bullying applications must be dismissed on the grounds of them having no prospects
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of success. So much is clear from the recent decision of Hampton C in Dr Ng [2019] FWC
3055.
[17] I understand the stress and anxiety of the applicants in the present circumstances
which has been exacerbated, in my view, by the ‘on again off again’ disciplinary process
which the Union has succeeded in deferring for many months. I also accept that the applicants
have a genuinely held belief that they have been bullied at work. However, the Commission’s
ultimate task is to determine whether the conduct alleged was reasonable management action
taken in a reasonable manner. This is only established by an objective consideration of all the
circumstances as to the actual state of unreasonableness, not an individual’s subjective
perception of it. This would appear to have been a primary consideration in the independent
investigator’s report.
[18] Putting aside the applicants’ rights under the Act to pursue unfair dismissal claims,
should the end result of the disciplinary process be dismissal, I am satisfied that the orders
sought by the Union are oppressive. They unreasonably intrude into management’s legitimate
right to pursue disciplinary outcomes against employees. However, I stress that I make no
comment on whether such action is fair or soundly based. That may (or may not) be a matter
for another day. The proposed orders are far too broad and general. Importantly, they are not
supported by any sound evidentiary foundation at this stage.
[19] From my knowledge of the matter so far, and the fact that there has been no outcome
of the disciplinary investigations, I am not satisfied that the balance of convenience favours
the applicants. It is unnecessary, therefore, to make a finding as to whether there is a serious
issue to be tried.
[20] Accordingly, the application for interim orders is dismissed. The stop bullying
applications will be listed for a directions hearing on Monday 24 June at 10am.
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DEPUTY PRESIDENT
Appearances:
R Coluccio, Australian Municipal, Administrative, Clerical and Services Union, for the
applicants.
J Stanton, Australian Federation of Employers and Industries, for the Society.
Hearing details:
2019.
Sydney (via telephone),
14 June.
Printed by authority of the Commonwealth Government Printer
PR709523
ORK WORK COMMISSION FAIR THE SEAL OF
