Worker seeks stop bullying order after employment ended for breaching code of conduct

A worker lodged an application seeking orders to stop bullying at work. Meanwhile, the employer sought the dismissal of the worker's application, arguing that it had no reasonable prospects of success. 

The employer asserted that the worker's employment was terminated and thus the Commission had no power to make stop bullying orders because it could not be satisfied that there was a risk the worker would continue to be bullied at work. 

The worker contended that termination did not extinguish jurisdiction and that the employer's authorities showed the Commission may adjourn or determine preliminary issues first.

Worker's recusal application and medical incapacity claims

Early on the day of the hearing, an application was filed by the worker seeking an immediate stay of the hearing and an immediate stay of all steps in the employer's dismissal application until particular steps were taken. 

The worker also sought an expedited administrative hearing before a different member of the Commission for directions on the stayed proceeding. Also on the same day, the worker sent correspondence asking that the Commissioner recuse himself from the proceeding on various grounds.

During the morning, the Commissioner indicated to the parties that the matters raised by the worker would be dealt with at the hearing listed later that day. The worker opposed this course, including on the basis that he said he was medically unfit to attend or participate in the hearing. 

He recorded these strong objections in several emails, but also said that, should the hearing nevertheless proceed, he would attend only for the limited purpose of placing these objections formally on the record.

The Commissioner permitted the worker to attend the hearing via video, and he did so. At the commencement of the hearing, the Commissioner indicated he intended to hear from parties in relation to the worker's apparent stay application and the recusal application. 

The Commissioner indicated that if, after hearing from parties, he thought it necessary to disqualify himself, then it was likely that the dismissal application would need to be re-heard before a different member of the Commission.

Worker left hearing after reading statement

The worker said he was appearing at the hearing under duress and that he was not capable of making submissions and could only read a prepared statement. He read the statement in which he repeated his objections that the hearing proceed and again sought that the matter be allocated to a different member of the Commission to deal with his stay and recusal applications. 

After the worker concluded his statement, the Commissioner again indicated he intended to hear submissions from both parties, firstly about the stay application and then the subsequent matters.

The worker again protested that he was not in a position to make submissions. He then left the hearing by logging off the video link. The hearing proceeded in the worker's absence.

The Commissioner dismissed the worker's purported stay application for reasons delivered on the transcript. In short, the application did not disclose the basis upon which the Commission had the power to grant a stay in these circumstances. The worker did not make submissions in support of the application.

Recusal application grounds and determination

The worker did not make submissions in support of his application that the Commissioner recuse himself despite having been given an opportunity to do so at the hearing. The Commissioner determined the application on the basis of the grounds the worker set out in writing. 

The grounds set out by the worker in relation to the recusal application focused on the decision the Commissioner issued in relation to the refusal to grant his adjournment request.

The grounds included incorrect or unsupported factual findings, use of an incorrect legal test for adjournment, consideration of irrelevant matters, failure to consider mandatory matters, outsourcing decision-making to the employer, statements indicating possible pre-determination, and treatment of disability-related limitations as matters of preference. 

The Commissioner noted that in Australia, when an application is made by a party that a member of a court or tribunal recuse themselves from a proceeding, the usual approach is that the application is dealt with by that judge or member, described as the "ordinary, and the correct practice".

Most of the grounds upon which the worker again sought recusal were based on his apparent view that the Commissioner's decision to refuse his request for the hearing to be vacated or adjourned was wrong, incorrect, or unfair. 

The Commissioner considered that these grounds were not properly grounds upon which it might be said the Commissioner should disqualify himself but were rather some of the bases upon which the worker considered the decision was wrong. For these reasons, the Commissioner declined to recuse himself in relation to this matter.

Non-publication orders application denied

The employer sought an order that the names of the four named persons in this application not be published. It sought this order be made in relation to the determination of the dismissal application and otherwise in relation to the substantive proceedings. 

The basis of the employer's application was that it submitted that the four named persons had been subject to a significant volume of serious and unfounded complaints by the worker, both internally and externally to the employer, and this course of conduct created a risk to the health and safety of those persons.

The worker objected to the application for non-publication orders. He submitted that such orders should only be made when "really necessary", that no confidential or safety-sensitive material had been identified, and that open justice should prevail. 

The Commissioner was not persuaded that, on the material before him, there was anything directed against the named persons more than allegations which were likely embarrassing, distressing or potentially damaging to reputations.

With regard to the principles of open justice, the Commissioner did not consider it appropriate to make the order sought by the employer at this time.

The Commissioner saw no reason to identify the named persons in this decision, as doing so added nothing to the decision, and not mentioning their names did not prevent the Commissioner from explaining the reasoning for determinations.

Procedural fairness and reasonable adjustments

The worker was of the view that he had been denied procedural fairness in relation to this matter, including with respect to the dismissal application.

The worker complained that he had been denied procedural fairness in this matter, including by not having had "reasonable adjustments" requests granted, and by not having been provided sufficient time to comply with directions. 

The worker's request for "reasonable adjustments" frequently involved a request for orders that he be granted immediate reinstatement of read-only access to his work email and all relevant files required for his case preparation.

The Commissioner made directions in relation to the conduct of the employer's dismissal application. The employer was permitted a week to file written materials in relation to the application, and the worker, two weeks. When the worker failed to comply with this direction, the Commissioner provided him with two extensions of time to do so.

Parties were also provided with three weeks' notice of the hearing. The worker did eventually file written submissions in relation to the dismissal application, and the Commissioner considered them in relation to this matter. 

The Commissioner determined, based on giving consideration to the views expressed by both parties, that it was appropriate to deal with the dismissal application before dealing with the various other requests made by the worker.

Employment termination and no future risk found

The employer submitted that the worker's application for stop bullying orders should be dismissed because it had no reasonable prospects of success.

The employer denied the worker had been bullied at work by the named persons, but more importantly, submitted that there was no risk the worker would continue to be bullied at work because his employment had been terminated. 

The termination of the worker's employment occurred when a general manager gave notice to the worker of her decision to terminate his employment under the Public Service Act on the basis that he had been found to have breached the code of conduct.

In response to the employer's submission, the worker submitted that termination did not extinguish jurisdiction and that the employer's own authorities showed the Commission may adjourn or determine preliminary issues first. 

The worker submitted that the evidence was incomplete and pending a general protections dismissal claim, which provided a live avenue for reinstatement or continued relationship, negating the no-prospects threshold. The Commissioner considered it was appropriate to determine the issue of future risk as a preliminary matter.

The Commissioner noted that to do so, it was not necessary to determine whether bullying had occurred with respect to the worker.

The Commissioner noted it was not uncommon that the Commission would determine that, in circumstances where employment of an applicant for stop bullying orders had terminated, there could be no future risk they would continue to be bullied at work, and thus their application could have no reasonable prospect of success. 

The Commissioner found there was undoubtedly prejudice to the employer if their application that this matter be dismissed was declined.

Application dismissed for no reasonable prospects

The Commissioner noted that if the application was not dismissed, the employer would be put to the cost and inconvenience of defending a proceeding in which, on the basis of the material before the Commissioner, there appeared no prospect the worker could obtain the relief from the Commission he sought, because there was no future risk of bullying. 

There was prejudice to the worker in having his application dismissed, but in circumstances where it appeared to the Commissioner that he could not succeed, the prejudice to the employer if the matter was allowed to continue weighed in favour of granting its application.

The worker submitted that an application he said he had filed provided a live avenue for reinstatement or continued relationship.

At the hearing, the employer claimed that it was not at this stage aware of the application the worker said he had made.

There was very little information before the Commissioner about the application, save that the worker asserted he had made it and alluded to reinstatement being a possibility. 

The Commissioner noted that to achieve reinstatement through this pathway, the worker may need to engage in protracted litigation with an obviously uncertain result and ultimately have the capacity to return to the workplace in a safe manner.

The Commissioner did not consider that the possibility that the worker may bring proceedings against the employer seeking the reinstatement of his employment, or may have already done so, did in these circumstances outweigh the prejudice to the employer if the application for stop bullying orders was allowed to proceed. 

Thus, the employer's application to dismiss the worker's application for stop bullying orders was granted.