[2019] FWC 7116
The attached document replaces the document previously issued with the above code on 15
October 2019.
Renumbered the paragraphs following the heading ‘Legislative framework’ to correctly
continue from paragraph [8].
Jeremy Lappin
Associate to Deputy President Saunders
Dated 15 October 2019.
1
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Application by Robert Tunsted
(AB2019/380)
DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 15 OCTOBER 2019
Application for an order to stop bullying.
[1] Mr Tunsted has made an application for orders to stop bullying (Application) pursuant
to section 789FC of the Fair Work Act 2009 (Cth) (Act). Mr Tunsted is employed by Busways
North Coast Pty Ltd (Busways).
[2] Mr Tunsted has been out of the workplace since about May 2018.
[3] The parties have participated in a number of conferences, by telephone, before Deputy
President Saunders of the Fair Work Commission (Commission) in an attempt to resolve the
matter.
[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 cause a risk to his wife’s
health or safety, given how she feels about the way he has been treated.
[2019] FWC 7116 [Note: An appeal pursuant to s.604 (C2019/7020) was
lodged against this decision. decision - refer to Full Bench decision dated 9
January 2020 [[2020] FWCFB 25] for result of appeal]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb25.htm
[2019] FWC 7116
2
Legislative framework
[9] Section 789FF(1) of the Act provides as follows:
“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.”
[10] 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.1
[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”.
Consideration
[12] I have had regard to all the submissions made by Mr Tunsted and Busways in deciding
this matter.
[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.
1 Atkinson v Killarney Properties Pty Ltd T/A Perm-A-Pleat Schoolwear and Adrian Palm [2015] FWCFB 6503 at [21]
[2019] FWC 7116
3
[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 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.
Conclusion
[18] For the reasons stated, I am not satisfied that there is any risk that Mr Tunsted will
continue to be bullied at work by an individual or group. 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 is not satisfied in this case. I have therefore decided to exercise my 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.
[19] Although I do not believe it is likely, I sincerely hope that Mr Tunsted is able to return
to work at Busways, and thereby continue his long term employment with that organisation.
In the event that Mr Tunsted’s return to work at Busways becomes a likely proposition and
there is a reasonable basis for Mr Tunsted to believe, for specific reasons not addressed in
[2019] FWC 7116
4
these 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.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR713346
OF THE WORK COMMISSION THE SEAL
