Application by Simounds [2016] FWC 2040 (5 April 2016) [2016] FWC 2040 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.789FC - Application for an order to stop bullying Justin Simounds (AB2015/98) DEPUTY PRESIDENT BARTEL ADELAIDE, 5 APRIL 2016 Application for an order to stop bullying – Whether application should be dismissed pursuant to s.587 of the Act. [1] Justin Simounds (the applicant) has filed an application pursuant to s.789FC of the Fair Work Act 2009 (the Act) seeking an order to stop bullying. The employer of the applicant at the relevant time is Events Personnel Australia (EPA or the employer) and one individual is cited as having engaged in bullying behaviour toward the applicant. The applicant was engaged as a Roadie and undertook work at various live entertainment events. [2] The application was the subject of preliminary phone conferences and conciliation prior to being allocated to the Fair Work Commission (the Commission) as presently constituted in early September 2015. Directions were issued on 16 September 2015 which included: “By close of business on Thursday 1 October 2015 , Mr Simounds (the applicant) will file: 1.1 Further particulars of the allegations against Events Personnel Australia (the employer) and separately, the allegations against Mick Thompson (the named individual), including the following: The dates and details of the particular incidents of alleged bullying behaviour; and How, when and to whom any complaint against the alleged bullying behaviour was made. 1.2 The particulars of the orders sought from the Commission to stop the alleged bullying behaviour; 1.3 Statutory Declarations or statements of evidence of any witnesses; 1.4 Any documents relied upon.” [3] The applicant failed to comply with these and subsequent directions and it was not until 30 November 2015 that he finally particularised the allegations. In the interim period he sent numerous emails containing hundreds of attachments, with no description or indication of the relevance of any of them. Statutory Declarations without the name or signature of the deponents were provided on the basis that the applicant wished to preserve the anonymity of witnesses in advance of the hearing. [4] At a telephone directions conference on 24 November 2015 the applicant advised that he had engaged a solicitor. Taking this and other matters into account the Commission permitted each party to be represented by a lawyer. Mr Douglas of Rowe Bristol Lawyers, represents EPA. The details of the lawyer representing the applicant have not been advised by a Form F53 Notice of Representative Commencing to Act or otherwise. [5] On 8 December 2015 further directions were issued. The matter was set for hearing on 29 January 2016. The applicant was to file an index of the particular attachments he intended to rely upon and to detail how the attachment was relevant to his application by 20 December 2015 and to file completed statutory declarations by 8 January 2016. Completed statutory declarations were filed on 28 January 2016. The applicant failed to provide an index of documents. [6] On 21 January 2016, the applicant sent an email requesting an adjournment on the basis that his lawyer was on leave until the end of March. The request was declined and I decided to proceed with the hearing on 29 January 2016 notwithstanding the applicant’s non-compliance/late compliance with the Directions issued on 8 December 2015. However it became apparent on the day that it was impractical to proceed without an index of the attachments the applicant intended to rely upon. [7] The matter was rescheduled for 17 March 2016 and the applicant was directed to file an index by 12 February 2016. It was clearly stated to the applicant that a failure to comply with this direction by the time stated and without reasonable cause may result in his application being dismissed. The applicant again failed to comply. [8] At no stage has the applicant contacted the Commission concerning his inability to comply with any of the Directions. [9] The hearing date was cancelled and the applicant was given an opportunity to show cause why his application should not be dismissed. The applicant then filed an index of 274 attachments which were also resubmitted in further emails. The applicant provided a submission in relation to the ‘show cause’ issue and referred to some of the attachments in support. The submissions [10] The applicant advanced three main grounds in support of the continuation of his application. Firstly, he submitted that the respondent has failed to present evidence to refute his allegations. Leaving aside the applicant’s unfounded assertion that “ EPA’s entire case has consisted of insults, slander and harassment towards me …” I take this to be a submission that his case has merit. [11] Secondly he submitted that if his case wasn’t heard other employees of EPA would be “ tormented and extorted ” including his witnesses in the present proceedings. In support of this contention the applicant submitted statements from three of his witnesses who were present at the hearing on 29 January 2016. The statements are essentially in identical terms and state that an EPA Manager approached them outside the courtroom on the day of the hearing and intimidated and harassed them in relation to the proceedings. [12] Thirdly, the applicant submitted that his personal circumstances and lack of representation 1 have made compliance with the directions and the preparation and formatting of material difficult. The applicant submitted a range of documentation to support this submission. The documentation shows that at least to November 2015 the applicant was suffering from anxiety and depression which his doctors link to an assault he suffered at work in February 2015. He has had financial difficulties and was involved in proceedings before the South Australian Civil and Administrative Tribunal (SACAT) because he was in arrears with his rent. He is involved in litigation over a rejected workers compensation claim, prepared information for the Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission) and is pursuing other ‘lines of enquiry’ in relation to this employment with EPA. [13] The applicant has not performed work for EPA since April 2015 and contends that EPA has taken a deliberate decision not to offer him further employment even though work has been available and he is an experienced and competent employee of long standing. [14] Mr Douglas submitted that the applicant had failed to provide an adequate explanation for the repeated failures to comply with the Commission’s Directions or why his application should not be dismissed. In particular, the first and second arguments submitted by the applicant do not address these matters. Mr Douglas vehemently denied that EPA has at any time authorised, directed or arranged for any of its employees to speak to the applicant’s witnesses. [15] In relation to the applicant’s third argument, Mr Douglas noted that the applicant’s medical certificates do not indicate that he has been unable to comply with the Commission’s directions and that none of the certificates relate to the current year. [16] It was submitted that EPA had not provided work for the applicant because he was working for a direct competitor of EPA and the employer’s policy is that it will not employ people who are working for a direct competitor. While not conceding that the applicant had been bullied at work, Mr Douglas submitted that it is not open to the Commission to make an order to stop bullying under s.789FF of the Act because there is no risk that the applicant will continue to be bullied at work. I take this to be a submission that the application has no reasonable prospects of success. [17] In his reply, the applicant noted that he had now presented all his information and in the manner directed by the Commission. He believes that the respondent’s representatives in the Courtroom on 29 January 2016 organised the intimidation of his witnesses. He offered to provide further medical evidence to explain his non-compliance with the Commission’s Directions. [18] The applicant stated that the respondent had failed to provide any details of his alleged employment with a competitor of EPA and suggested that this was a recent invention. [19] The applicant then made a broad range of allegations against the respondent including that it engaged in criminal conduct. I will return to these matters later but I consider that part of the problem in progressing this matter has been the refusal or inability of the applicant to focus his attention on the claim he has made and what is required in order for his claim to succeed. Consideration [20] Section 587 of the Act is 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.” [21] The words “ without limiting when the FWC may dismiss an application ” at the commencement of s.587(1) of the Act establish that the jurisdiction of the FWC to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c). The power to dismiss an application under s.587 is a discretionary one. [22] In Chand v State Rail Authority of NSW (Chand) , 2 a Full Bench of the Australian Industrial Relations Commission was dealing with an appeal against the decision at first instance to strike out the appellant’s application for relief in respect to the termination of her employment. The Full Bench stated that: “ [48] The classic circumstances that enliven a court’s discretion to dismiss an action for want of prosecution are a failure, typically a repeated failure, by a plaintiff to comply with directions of the court or a prolonged period of inactivity on the part of a plaintiff.” [23] The Full Bench in Chand cited Ghalloub v Aon Risk Services Australia Limited (Ghalloub) 3 in its consideration of the exercise of discretion to summarily dismiss a matter for non-compliance with directions or otherwise for want of prosecution. A summary of the relevant passages cited from Ghalloub stand for the following propositions: ● Directions can play an important part in case management and the more efficient conduct of proceedings however case management is not an end in itself and cannot be used to supplant the ultimate aim of attaining justice; ● The Commission should have regard to the following matters, among others, in considering whether to dismiss an application for want of prosecution: (i) A history of non-compliance with directions indicating an inability or unwillingness to have the matter ready for trial in an acceptable period; and (ii) Continuing non-compliance causing unnecessary delay, expense or other prejudice to the respondent. The emphasis is on “continuing non-compliance” – once compliant there may be an issue of costs in respect to past default but it would be difficult to justify the dismissal of proceedings. [24] The Full Bench in Chand concluded that the ultimate issue is what is required in the interests of justice in the circumstances of the particular case. 4 [25] The applicant has caused expense and inconvenience to the respondent by his failure to meet the deadlines imposed by the Commission. I acknowledge the personal situation of the applicant and the difficulties that an apparently unrepresented party faces in preparing and presenting a case. However the material submitted by the applicant as to the reasons for his non-compliance does not establish that he did not have the capacity or time to prepare the required information. The dates for compliance were in most cases set in the course of discussion with the parties and no objection was raised at the time. [26] I also acknowledge that the applicant has, belatedly, now presented his material to the Commission and has broadly complied with the Directions, notwithstanding the questionable relevance of some of the material submitted. It is also the case that the applicant has made it clear throughout that he intends to proceed with his application and while he failed to meet the Directions it cannot be said that there has been a prolonged period of inactivity. [27] It is a serious step to deny an applicant the opportunity to pursue a cause of action. Consistent with the principles outlined in Chand , and in particular taking into account that the applicant has now complied with the directions, his past conduct should not deprive him of the opportunity to present his case. [28] The application will not be dismissed for want of prosecution. There is however a further matter to be considered. Reasonable prospect of success? [29] The employer has on more than one occasion raised the issue of the applicant’s ability to satisfy the Commission of the jurisdictional requirements in order to make an order to stop bullying. These requirements are set out in s.789FF 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. (2) In considering the terms of an order, the FWC must take into account: (a) if the FWC is aware of any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another person or body—those outcomes; and (b) if the FWC is aware of any procedure available to the worker to resolve grievances or disputes—that procedure; and (c) if the FWC is aware of any final or interim outcomes arising out of any procedure available to the worker to resolve grievances or disputes—those outcomes; and (d) any matters that the FWC considers relevant.” [30] Most recently, the employer submitted that: “… However, most importantly, and as stated in the Respondent’s outline of argument provided to the Commission on 25 January 2016, the Respondent’s policy is such that it does not employ people who also work for a direct competitor of the Respondent and whilst these circumstances persist, the Applicant will not receive any future casual shifts from the Respondent and this being so there is absolutely no risk of the Applicant being bullied in the future.” 5 [31] In the case of an employee making allegations of bullying conduct by other employees or officers of their employer, the jurisdiction of the Commission to make an order under s.789FF of the Act is underpinned by the existence or future existence of a contractual relationship between the parties. Section 789FC applications to the Commission are for an order to stop bullying. The scheme of the legislation is not one of compensating the worker for having been bullied but of stopping any further bullying from occurring. The worker must be “at work” and exposed to the risk of further bullying for any orders of the Commission to have force and effect. [32] The applicant last worked for the employer in April 2015. It is relevant that, at around this time, the applicant filed an unfair dismissal application, which he subsequently withdrew. The lack of work offered to the applicant was initially explained by the employer as a seasonal downturn but more recently the employer has relied on its policy concerning employment by direct competitors. I observe that this bears the hallmarks of a ‘chicken and egg’ argument - the applicant needs to secure employment because he is not being offered work by EPA, which then doesn’t offer work because the applicant is allegedly engaged by one of its competitors. [33] The applicant was engaged by EPA as a casual employee. His pay records for the 2013-14 and 2014-15 financial years indicate that the hours he worked were variable ranging from between 4 hours and 38 hours per week and from time to time no work was performed in any given week or for several weeks. Following an assault on the applicant (by an employee of a contractor on site) in February 2015, his average earnings were assessed by the workers compensation authority as $106.50 per week. [34] The applicant has performed work for EPA for 28 years and it is arguable that, despite the fluctuations in the weekly hours he undertook, there is a level of regularity in his employment. In any event both parties have proceeded on the basis that the employment relationship between them is constituted of a series of discrete engagements, the last of which was offered to the applicant in May 2015 (which he was unable to work). [35] EPA disputed that it had dismissed the applicant when he filed an unfair dismissal application, yet it has offered no work since May last year. I raised this matter with the parties in October 2015. At that time, the applicant referred to statements made by the employer that he remained ‘on the books’ and that he would receive work in the future. 6 Mr Douglas stated that: “…the Applicant is not scheduled for any further shifts with our client at this time. This may change depending on the nature and frequency of future jobs our client is engaged to perform”. 7 [36] At that stage the Commission decided to proceed with the application and further Directions for the filing of documents were issued on 22 October 2015. Five months have passed since this matter was raised with the parties and still no shifts have been offered to the applicant. [37] The failure to offer a shift for 10 months is inconsistent with the applicant’s pattern of engagement/earnings in previous financial years. 8 I do not accept EPA’s position that it cannot offer work to the applicant because he is working for a competitor – any offer of work could be conditional upon the applicant ceasing such work, if indeed it is currently being performed. 9 [38] The decision not to offer employment raises the issue of whether the application should be dismissed because it has no reasonable prospects of success. The exercise of the discretion under s.587(1)(c) to dismiss an application for an order to stop bullying on this ground has been considered in a number of cases, most notably in Shaw v Australia and New Zealand Banking Group Ltd and Anor 10 ; Obatoki v Mallee Track Health & Community Services and Others 11 ; and Atkinson v Killarney Properties Pty Ltd T/A Perm-A-Pleat Schoolwear and Anor 12 . [39] The applicant in each of these cases had been dismissed by the employer and it was held that, as the applicant was not “at work”, there was no risk of a continuation of any bullying, even if it was found to have occurred in the past. The fact that the applicants in these cases may have been pursuing unfair dismissal or other actions in which the remedy of reinstatement was being sought or was able to be sought, was not held to be persuasive. It was determined in each of these cases that, as the jurisdictional prerequisite under s.789FF(1)(b)(ii) could not be met, the application had no reasonable prospect of success and the discretion to dismiss the application was exercised. [40] In the present matter EPA does not contend that the applicant has been dismissed. It does not suggest that the failure to offer work is the result of any misconduct or negligence on the part of the applicant. It has stopped short of stating that no further engagements will be offered to the applicant and now places the responsibility with the applicant for the lack of any engagements. I have some difficulty with this position for the reasons outlined earlier. Nonetheless, any current engagement that the applicant does have with a competitor to EPA is not necessarily a permanent one. Accordingly it is not open to the Commission to conclude that the applicant is unable to satisfy the requirement in s.798FF(1)(b)(ii) of the Act. [41] The parties will be contacted concerning the future listing of this matter. DEPUTY PRESIDENT Written submissions: Applicant 1 and 17 March 2016 Respondent 11 March 2016 1 This is inconsistent with previous advice to the Commission. 2 PR975108 , Lawler VP, McCarthy DP and Redmond C, 19 December 2006. 3 PR956665 , Guidice J, Hamilton DP and Larkin C, 21 March 2005. 4 Chand, supra at [50]. 5 Employer submission on why the application should be dismissed, 11 March 2016. 6 Email from the applicant on 20 October 2015. 7 Letter from Rowe Bristol Lawyers dated 20 October 2015. 8 EPA Payroll Advice 2013-14 and 2014-15; Respondent’s Outline of Argument 25 January 2016. 9 There is insufficient material is before the Commission to reach a view on this matter. 10 [2014] FWC 3408 . 11 [2015] FWCFB 1661 . 12 [2015] FWCFB 6503 . Printed by authority of the Commonwealth Government Printer <Price code C, PR578586>