1
Fair Work Act 2009
s.604 - Appeal of decisions
Robert Gavin Tunsted
v
Busways North Coast Pty Ltd
(C2019/7020)
VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT SAMS
COMMISSIONER HAMPTON
SYDNEY, 9 JANUARY 2020
Appeal against decision of Deputy President Saunders at Newcastle on 15 October 2019 in
matter number AB2019/380.
Background to the appeal
[1] This decision deals with an appeal, for which an extension of time is sought and
permission to appeal is required, made by Mr Robert Tunsted under s 604 of the Fair Work
Act 2009 (Cth) (the Act), against a decision1 of Deputy President Saunders made in
connection with Mr Tunsted’s stop-bullying application (Decision). The stop-bullying
application was made under s.789FC of the Act and the workplace in which Mr Tunsted
works is conducted by Busways North Coast Pty Ltd (Busways), the respondent in this
appeal.
[2] Busways conducts contracted passenger transport, school bus and charter bus services
in the Western Sydney, Central Coast and North Coast regions of New South Wales.
Mr Tunsted is engaged as a Bus Driver at the Grafton Depot.
[3] The background to this matter is that in mid-May 2018, another employee,
Mr Van Haren, made an internal workplace complaint against Mr Tunsted and as a result of
that complaint, Busways created an Occurrence Report and opened an investigation into the
matter. In May 2018, Mr Tunsted reported a workplace injury associated with his mental
health and connected with the Occurrence Report and thereafter was absent from the
workplace. This remained the case at the time of the hearing of this appeal.
[4] Mr Tunsted lodged a stop-bullying application on 17 July 2019. The application
named one of Busways’ managers, Mr Humphreys, as the person against whom the bullying
conduct was alleged but the application itself focused upon the veracity of the Occurrence
Report and the process adopted by Busways to deal with that matter. In substance,
1 [2019] FWC 7116.
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DECISION
E AUSTRALIA FairWork Commission
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Mr Tunsted claimed in his application that the Occurrence Report was fraudulent, the matter
had not been fully or fairly investigated, and these issues were causing him ongoing anxiety.
[5] The stop-bullying application was subject to multiple conferences before Deputy
President Saunders in an attempt to resolve the matter. Ultimately, the Deputy President
dismissed the application on the basis that it had no reasonable prospects of success. This in
turn was based on a finding that there was no risk of Mr Tunsted being subject to relevant
future workplace bullying conduct following certain changes in the workplace and other
developments.
[6] Mr Tunsted lodged his notice of appeal on 18 November 2019 and seeks, in effect,
that the decision of the Deputy President be overturned and that his stop-bullying application
be further considered by the Commission.
[7] Written submissions were filed with the Commission by both parties and during a
hearing conducted on 13 December 2019, Mr Tunsted made some very brief oral submissions
in support of his appeal. Busways sought to be represented at the hearing by lawyers;
however, we considered that permission was not appropriate having regard to the
considerations in s.596 of the Act and the circumstances of this matter. Those circumstances
included the fact that Busways had filed detailed written submissions addressing the appeal
and we did not need to hear further from them given the material already before the Full
Bench.
The decision at first instance
[8] In his decision, the Deputy President noted the following
“[4] During the conference on 13 September 2019, there was agreement that, apart
from how Mr Tunsted’s wife may feel about his return to work, the sole impediment to
Mr Tunsted returning to work at Busways is the complaint made by Mr Van Haren
about Mr Tunsted in about May 2018. The parties agreed on a way forward to deal
with that complaint.
[5] On 23 September 2019, Busways informed Mr Tunsted and the Commission
that it had decided not to proceed with the investigation of Mr Van Haren’s complaint
against Mr Tunsted because there was no supporting evidence that Mr Tunsted
threatened Mr Van Haren.
[6] Later on 23 September 2019, Mr Gibson confirmed in an email to Mr Tunsted
and the Commission that Occurrence Report 104183 has been finalised and closed;
there will be no further action taken in relation to the Occurrence Report.
[7] Mr Van Haren is no longer working at the Grafton depot. As a result, there
would be no further contact between Mr Tunsted and Mr Van Haren if Mr Tunsted
returned to work.
[8] Having regard to these circumstances, Mr Tunsted accepted in the conference
on 13 September 2019 that there would not be any risk to his health or safety if he
returned to work at Busways. Mr Tunsted’s concern was that his return to work may
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cause a risk to his wife’s health or safety, given how she feels about the way he has
been treated.”
[9] The Deputy President noted that the legislative framework included that under
s.789FF of the Act, “if there is no risk that a worker will continue to be bullied “at work by
the individual or group”, then one of the pre-requisites in section 789FF of the Act for the
Commission to be able to make an order to stop bullying will not be satisfied.”2
[10] The Deputy President then also noted as follows:
“[11] On 1 October 2019, I issued a Statement to the parties in which I informed
them that I was considering dismissing the Application on the basis that there was no
risk that Mr Tunsted would be bullied at work. Busways filed a submission on 8
October 2019 in relation to that proposal. Mr Tunsted filed submissions in reply on 11
and 14 October 2019, in which he stated, amongst other things, that Busways’ decision
not to proceed with its investigation of Mr Van Haren’s complaint had eliminated the
anxiety Mr Tunsted felt in relation to attending a disciplinary meeting concerning that
matter, but receiving a copy of Occurrent Report 104183 has caused Mr Tunsted more
distress because he believes various employees of Busways have lied in relation to
Occurrence Report 104183, including to the Commission. Mr Tunsted also pointed out
in his reply submissions that his treating psychiatrist has stated that his “perception of
bullying and unfair treatment in the workplace may prove to be an impediment to an
effective return to work program”.”
[11] The conclusion3 that the Deputy President was not satisfied that there was any risk that
Mr Tunsted will continue to be bullied at work by an individual or group was based upon the
reasons set out hereunder:
“[13] Mr Van Haren no longer works in the same depot as Mr Tunsted worked. As a
result, there would be no further contact between Mr Tunsted and Mr Van Haren if
Mr Tunsted returned to work. Mr Tunsted is not at any risk of bullying from Mr Van
Haren in the workplace.
[14] The complaint by Mr Van Haren against Mr Tunsted is not being investigated
by Busways. Mr Tunsted accepts that Busways’ decision not to proceed with its
investigation of Mr Van Haren’s complaint has eliminated the anxiety Mr Tunsted felt
in relation to attending a disciplinary meeting with Mr Humphreys concerning that
matter. Mr Tunsted is not at any risk of bullying in relation to any investigation by
Busways of the complaint by Mr Van Haren.
[15] Mr Tunsted accepted in the conference on 13 September 2019 that there would
not be any risk to his health or safety if he returned to work at Busways, and the
remaining impediment to Mr Tunsted returning to work was his concern about how his
wife may react to his return to work at Busways. The impact of any return to work by
Mr Tunsted on his wife’s health is obviously an important consideration to which he
will have regard in deciding whether to recommence work at Busways. However, the
2 Decision at [10].
3 Decision at [18].
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question I need to consider under the Act is whether there is a risk to the worker (Mr
Tunsted), not one of his family members.
[16] As to any risk to Mr Tunsted, he qualified the position he put to the
Commission on 13 September 2019 in his subsequent submissions by saying that he is
suffering ongoing distress in relation to what has been said and communicated in
relation to Occurrence Report 104183, particularly the dishonest and deceptive
statements which Mr Tunsted believes have been made in relation to Occurrence
Report 104183. I accept that Mr Tunsted is suffering such ongoing distress. However,
it has been confirmed by Busways that Occurrence Report 104183 has been finalised
and closed; there will be no further action taken in relation to the Occurrence Report.
The finalisation and closure of Occurrence Report 104183 means, in my view, that
there is no risk that Mr Tunsted will be bullied at work by an individual or group in
relation to Occurrence Report 104183 or what has been said or communicated in
relation to it.
[17] Having regard to all the circumstances, I am not satisfied that there is any risk
that Mr Tunsted will continue to be bullied at work by any person or group of persons.
In addition, I consider it is more likely than not that Mr Tunsted will not return to
work at Busways. Mr Tunsted has been out of the workplace since May 2018. His
psychiatrist’s opinion that Mr Tunsted’s “perception of bullying and unfair treatment
in the workplace may prove to be an impediment to an effective return to work
program” has proven to be correct for a period of 16 months so far, and, in my view, is
likely to remain so, particularly when considered together with Mr Tunsted’s real
concern about the impact on any return to work at Busways on his wife’s health.”
[12] The Deputy President then exercised his discretion under s.587(1)(c) of the Act to
dismiss the application on the basis that the future risk prerequisite of s.789FF(1)(b)(ii) was
not satisfied and noted the capacity for Mr Tunsted to lodge a fresh stop-bullying application
should he subsequently return to the workplace and have reasonable grounds that consider
that he was risk of being bullied.4
Extension of time for the appeal
[13] The Deputy President’s decision was issued on 15 October 2019 and the appeal was
lodged on 18 November 2019. Rule 56(2) of the Fair Work Commission Rules 2013 deals
with the time period for lodging appeals. That rule relevantly provides that an appeal must be
lodged within 21 calendar days after the date of the decision appealed against. The 21st day
after the Decision was 5 November 2019. It follows that the appeal was lodged some 13 days
outside the prescribed time limit. Rule 56(2)(c) confers a discretion on the Commission to
extend the time within which an appeal is to be lodged and Mr Tunsted has, in effect, made
such an application.
[14] Time limits of the kind in Rule 56 should not simply be extended as a matter of
course. There are sound administrative and industrial reasons for setting a limit to the time for
bringing an appeal and it should only be extended where there are good reasons for doing so.
4 Decision at [18], [19].
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[15] The authorities5 indicate that the following matters are relevant to the exercise of the
Commission’s discretion to extend the prescribed time for the lodging of an appeal:
whether there is a satisfactory reason for the delay;
the length of the delay;
the nature of the grounds of appeal and the likelihood that one or more of those
grounds being upheld if time was extended; and
any prejudice to the respondent if time were extended.
[16] In broad terms the issue for the Commission is whether, in all the circumstances and
having regard to the matters set out above, the interests of justice favour an extension of the
time within which to lodge the appeal.
[17] Mr Tunsted provided wide ranging submissions in support of his extension of time
application and we understand that he relies upon the following elements as grounds in that
regard:
On 14 October 2019, he became aware that Mr Van Haren worked a shift from the
Grafton Depot and brought this to the attention of the Deputy President’s
Chambers on the following day;
On 4 November 2019, he again made contact with those Chambers and informed
the Commission that Mr Van Haren had again worked from the Grafton Depot and
outlined that this made a mockery of the Decision;
Having, on 4 November, been informed that the stop-bullying application was
closed he subsequently spoke to someone at the Commission and became aware of
the process and timeframes for lodging an appeal; and
His wife had surgery on 7 November 2019 and due to the need to be mindful of her
condition and the anxiety caused by the events leading to the stop-bulling
application and the Decision, he was only able to lodge the appeal when it was
actually lodged.
[18] We observe that there is some medical evidence before the Commission indicating that
Mr Tunsted has been diagnosed with a major depressive disorder associated with the events
leading to the application.6
[19] Busways contends that an extension of time should not be granted as the appeal was
lodged with an unreasonable delay, which has not been properly explained, and the matter has
minimal prospects of success.
[20] We consider that it is in the interests of justice in this matter that an extension of time
for the appeal be granted. Despite our ultimate conclusions, the personal circumstances of
Mr Tunsted provide a satisfactory reason for the delay and the other circumstances lead us to
the view that question of whether leave to appeal is to be granted should be dealt with by us.
The grounds of appeal
5 Lesic v No 1 Riverside Quay Pty Ltd T/A BP Australia [2015] FWCFB 395, Ropafadzo Tokoda v Westoac Banking
Corporation T/A Westpac [2012] FWAFB 3995.
6 Referenced in the material before the Deputy President and in the Decision at [16], [17].
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[21] Mr Tunsted continued to represent himself in the appeal and provided far reaching
written submissions, the effect of which was that the Decision should be overturned on a
number of grounds. Firstly, he contends that there was, in effect, an error in the factual
finding that Mr Van Haren no longer worked at the Grafton Depot.
[22] Secondly, Mr Tunsted contends that there was an error in the finding that there was no
risk of further bullying in relation to the Occurrence Report.
[23] Thirdly, it is evident in the appeal documents that Mr Tunsted remains deeply
concerned about the fact that the allegations in the Occurrence Report were made at all and
how Busways dealt with that matter. Despite the fact that Busways has finalised and now
closed the investigation with no suggestion of any disciplinary action to be taken in relation to
Mr Tunsted, he continues to strongly resent that process and considers that the failure to
properly and fairly investigate the complaints, including his contention that there were made
fraudulently, continues to impact upon his health, that of his wife, and his capacity to return to
the workplace.
Consideration of permission to appeal
[24] The Commission will grant permission to appeal where it is in the public interest to do
so.7 The applicable test in assessing whether a matter is in the public interest was summarised
by the Full Bench in GlaxoSmithKline Australia Pty Ltd v Colin Makin8 as follows:
“[26] Appeals have lain on the ground that it is in the public interest that leave should
be granted in the predecessors to the Act for decades. It has not been considered useful
or appropriate to define the concept in other than the most general terms and we do not
intend to do so. The expression ‘in the public interest’, when used in a statute,
classically imports a discretionary value judgment to be made by reference to
undefined factual matters, confined only by the objects of the legislation in question.
[Comalco v O’Connor (1995) 131 AR 657 at p.681 per Wilcox CJ & Keely J, citing
O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210]
[27] Although the public interest might be attracted where a matter raises issues of
importance and general application, or where there is a diversity of decisions at first
instance so that guidance from an appellate court is required, or where the decision at
first instance manifests an injustice, or the result is counter intuitive, or that the legal
principles applied appear disharmonious when compared with other recent decisions
dealing with similar matters, it seems to us that none of those elements is present in
this case.”9
[25] It will rarely be appropriate to grant permission to appeal unless an arguable case of
appealable error is demonstrated. This is so because an appeal cannot succeed in the absence
of appealable error.
7 Fair Work Act 2009 (Cth) s.604(2).
8 [2010] FWAFB 5343.
9 Ibid at [26] – [27].
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[26] 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 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.
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.”
[27] 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.
[28] 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 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.
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(2) …”
[29] Relevantly for present purposes, s.789FF(1)(b)(ii) means that for the Commission to
make an Order it must be satisfied that there is a risk that the applicant worker will continue
to be bullied at work by the individual or group. It is apparent that this contemplates the
risk being to the applicant as a worker in that capacity and from the individual or group found
to have bullied the applicant. In the case of this provision being applied as a preliminary
point, the future risk would naturally apply to the individual or group alleged by the applicant
in their application to be responsible for the conduct underpinning the matter.10
[30] 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 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
[31] Although adopted in the costs provisions, which is relevant factor, 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.
[32] In Wright v Australian Customs Service12 the Australian Industrial Relations
Commission, under predecessor legislation13 discussed the approach of the Commission to the
assessment that ‘no reasonable prospects of success’ exist in a somewhat similar context to
the present matter, and said:
“[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.
10 See the discussion of the earlier authorities when applied in a related context in Atkinson v Killarney Properties Pty Ltd
[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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[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.14 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)15, 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".
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
14 Workplace Relations Act 1996 (Cth).
15 General Steel Industries Ind. v Commissioner for Railways (N.S.W) (1964) 112 CLR 125.
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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
the conclusion that the Commission must reach before an obligation arises to issue the
requisite certificate.” (references and footnotes omitted)
[33] Given all of the above, changes in the circumstances of the parties and/or the
workplace 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)(ii) of the Act. When considered
as a preliminary point, 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 reasonably likely context in which the applicant might, as a worker,
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be subject to the risk of future workplace bullying conduct in the relevant workplace by the
individual or group.16
[34] Further, the finding that there is no reasonable prospect of success informs the exercise
of any discretion that arises and that discretion must be assessed in the context of each
particular case and is not to be exercised lightly.
[35] We consider that the grounds of appeal in this matter raise the public interest to the
extent that they involve the basis upon which the Commission might consider that there are
no reasonable prospects of success in a stop-bullying application based upon the absence of a
future risk of bullying. This is particularly so when, as in this case, the findings were based
upon changes in circumstances at the workplace when no substantive evidence was led or
specific merit findings were made.
Consideration of the appeal
[36] In the matter at first instance, Busways made an application under s.587 of the Act
seeking that Mr Tunsted’s stop-bullying application be dismissed on the basis of the absence
of a relevant future risk. In dealing with the respondent employer’s request, on 1 October
2019 the Deputy President issued a Statement and Directions setting out some of the history
of the matter, the basis upon which Busways contended that no future risk existed and the
potential consequences of such a finding by reference to s.789FF of the Act. The Deputy
President also summarised what he understood Mr Tunsted’s position to be following a series
of conferences that he had conducted with the parties. This latter statement was as follows:
“[11] In light the fact Mr Van Haren no longer works in the same depot as Mr
Tunsted worked, the complaint by Mr Van Haren against Mr Tunsted is not being
investigated by Busways, Mr Tunsted accepts that there would not be any risk to his
health or safety if he returned to work at Busways, and the remaining impediment to
Mr Tunsted returning to work is his concern about how his wife may react to his return
to work at Busways, it appears as though there is no risk that Mr Tunsted will continue
to be bullied at work by any person, or group of persons. It follows that one of the pre-
requisites in section 789FF of the Act for the Commission to be able to make an order
to stop bullying does not appear to be able to be satisfied in this case. In those
circumstances, Deputy President Saunders is considering exercising his discretion
pursuant to section 587(1)(c) of the Act to dismiss the Application on the basis that it
has no reasonable prospects of success.”17
[37] In response on 4 October 2019, Mr Tunsted supplied what he described as an open
letter to the Deputy President by email. He further stated that:
“This is not a submission in relation to why the above should not be dismissed, it is
rather a letter of clarification and summation of matters leading up to and being
mentioned in your Statement and Directions dated 1st October, 2019.”18
16 Atkinson v Killarney Properties Pty Ltd [2015] FWCFB 6503 at [35].
17 Statement and Directions of Deputy President Saunders in matter AB2019/380 dated 1 October 2019.
18 Applicant’s email response to Statement and Directions, dated 4 October 2019.
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[38] Mr Tunsted then outlined his original motivation for bringing the application and in
particular his unhappiness as to how the Occurrence Report was handled by the management
of Busways.
[39] In relation to the proposition outlined in [11] of the Statement and Directions,
Mr Tunsted stated that:
“It is therefore hard to argue with your summation part of which being:
“In light of the fact that Mr Van Haren no longer works in the same depot as Mr
Tunsted worked, ………………….. it appears as though there is no risk that Mr
Tunsted will continue to be bullied at work by any person or group of persons. It
follows that one of the pre-requisites in Section 789FF of the Act for the Commission
to be able to stop bullying does not appear to be able to be satisfied in this case” as
your summation only relates to the specific application that I made.
At the end of the day it does not make a lot a difference whether the order is given or
not for it is just as hard to argue that I didn’t achieved the same outcome that I was
after albeit in a different way when after Busways Solicitors strenuous efforts in Form
F73 for this matter not to be heard in the Fair Work Commission …”
[40] Mr Tunsted confirmed his medical condition and observed as follows:
“It hasn’t gone unnoticed by me that your order for Ant Van Haren to either press or
withdraw his charges has been neatly circumvented by Busways themselves in saying
that they wouldn’t pursue the matter as there was no supporting evidence for it was
Busways themselves who had to prove what they said in their outcome letters
particularly in reference to Occurrence Report 104183 were true and one which I said I
believed could be considered an” utter farce”
It also hasn’t gone unnoticed by me that there was no reference to the line
(i) the worker has been bullied at work by an individual or group of individuals
In your Statement and Directions as a pre-requisite for section 789 FF that does not
appear to be satisfied.”
[41] We note that the Deputy President did not make any merit-based Orders in the matter
but we presume that the above is a reference to some of the outcomes of the conferences
conducted by the Deputy President. Mr Tunsted concluded his letter in the following terms:
“I would like to take this opportunity to thank you for overruling the F73 application by
Busways Solicitors and allowing me to have my day in Court so as to speak.”
[42] We also observe that in response to written submissions filed on behalf of Busways,
Mr Tunsted subsequently reinforced his contention that how the Occurrence Report had been
made and handled was wrong and continued to impact upon him and his wife.
[43] When considered in context, the Deputy President would reasonably have understood
that Mr Tunsted did not take issue with the basis upon which the no future risk case had been
advanced, but that he did not consent to the dismissal of the application and continued to feel
aggrieved about how the Occurrence Report had been made and handled. Further, Mr Tunsted
2020 FWCFB 25
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was not contending for a broader risk of workplace bullying beyond the factors canvassed in
the Deputy President’s Statement and Directions.
[44] In leading to that point, the Deputy President also took the appropriate steps to alert
the parties to the basis upon which he proposed to deal with the no future risks proposition
and the potential consequences of such a finding. This was particularly important given
Mr Tunsted’s circumstances. The Deputy President subsequently fairly set out and considered
the responses provided by Mr Tunsted (and Busways) in the Decision.
[45] Given what would reasonably be seen as a concession by Mr Tunsted that the
fundamental basis of the no future risk case was not disputed, it was reasonably open to the
Deputy President to make the ultimate finding that he did despite the absence of sworn
evidence. It is now the case that Mr Van Haren is apparently working some shifts from the
Grafton base; however, it is not clear on the evidence as to whether that will mean that there
will be no further contact between himself and Mr Tunsted. Assuming that this is likely, had
the prospect of this occurring been made known to the Deputy President prior to the decision
being made, further consideration of this aspect would have been required. However in all of
the circumstances, no error in the Decision has been established on this point given the
process and positions set out above.
[46] In relation to the status and investigation of the Occurrence Report, the Deputy
President would also have reasonably understood that Mr Tunsted was no longer at risk of
unreasonable conduct associated with this matter given that the investigation was closed
following conferences conducted to advance the stop-bullying application and facilitate
Mr Tunsted’s return to the workplace. We observe that this does not mean that there is no
ongoing legacy of how Mr Tunsted feels about the matter. However, given the preventative
nature of the stop-bullying jurisdiction, the terms of s.789FF and positions adopted by the
parties before the Deputy President, we also do not consider that error in the Decision on this
aspect has been demonstrated.
[47] We do note the reference to the limited prospects of Mr Tunsted returning to work in
the Deputy President’s concluding remarks.19 We consider that findings of this nature when
used in the context of a no future risk case considering s.7899FF(1)(b)(ii) of the Act should be
reached with caution and based upon probative medical or other evidence. To do otherwise
would run the risk of undervaluing the preventative nature of the stop-bullying jurisdiction
and the capacity for an Order to provide the right context where a return to work becomes
possible. In this matter, we understand that the Deputy President was referring to the role
being played by Mr Tunsted’s concerns about his own and his wife’s health, rather than itself
being a basis for the view that there was no future risk.
Conclusions and disposition of the appeal
[48] In all of the circumstances, we do not consider that any appealable error in the
Decision has been demonstrated and intervention of the Full Bench in this appeal is not
warranted.
[49] We would also make the observation, consistent with that made by the Deputy
President, that in the event that Mr Tunsted’s return to work at Busways becomes a likely
19 Decision at [17].
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proposition and there is a reasonable basis for Mr Tunsted to believe, for specific reasons not
addressed in the earlier proceedings, that he is at risk of being bullied at work by one or more
particular persons, then he would be able to file a fresh application in the Commission for
orders to stop-bullying.
Orders
[50] For the reasons given, we order as follows:
(1) The extension of time to file this appeal is granted.
(2) Permission to appeal is granted in accordance with s.400(1) of the Act.
(3) The appeal is dismissed.
VICE PRESIDENT
Appearances:
R Tunsted, the Appellant on his own behalf (by telephone).
Hearing details:
2019
Sydney
13 December.
Printed by authority of the Commonwealth Government Printer
PR715687
THE FAIR WORK ARO MISSION THE SEAA OR
