Published 7 September 2016
The Fair Work Commission allowed future listing of an application for an order to stop bullying after finding the applicant had broadly complied with the Commission’s directions and noting the possibility of future work with the respondent despite a current lack of engagement.
Simounds sought an order against bullying under s 789FC of the Fair Work Act 2009.
Simounds was required to file a number of documents by close of business on 1 October 2015 to support his allegations. He did not submit these documents, nor did he follow further instructions.
On 30 November 2015, Simounds specified the allegations he was making. He had sent “numerous emails containing hundreds of attachments” to the Commission without labelling or providing information regarding their relevance.
Simounds failed to comply with 3 other subsequent directions without notifying the Commission as to why he could not comply.
The submissions eventually submitted by Simounds were as follows:
- His employer, Events Personnel Australia (EPA), failed to refute the allegations of bullying
- If the case was not heard, a number of EPA employees would be “tormented and extorted”. This was supported by statements from 3 witnesses to the proceedings who claimed a manager of EPA had intimidated them in relation to the case
- His personal circumstances, namely suffering from anxiety and depression, and lack of representation resulted in him being unable to submit certain documents at certain times as directed
- EPA actively refrained from giving him further work and failed to support their claim that he was working for a competitor of EPA
The submissions by EPA were as follows:
- Simounds failed to comply with the Commission’s directions and failed to adequately explain the reason for this
- Work had not been offered to Simounds because he was working for a competitor of EPA and EPA did not employ people who worked for their competitors, as such there was no risk of continued bullying
Decision
The Commission first considered whether the matter should be dismissed based on Simounds repeated fail to comply with directions. The Commission noted Simounds had caused the Commission “expense and inconvenience” by failing to meet the imposed deadlines and he failed to establish a lack of capacity or time as the reason for not complying. The Commission also noted that Simounds eventually produced his material and there was no extended period of inactivity.
The Commission ruled the case should not be dismissed.
The Commission considered whether there was a reasonable prospect of success of Simounds case. The Commission noted that under s 789FC of the Fair Work Act 2009 the purpose of an order to stop bullying is to negate the ability of future bullying from occurring and therefore a contractual relationship between the parties was required.
The Commission noted that EPA showed no intend to give Simounds future shifts because they claimed he was working for a competitor. Over 10 months, Simounds was given no shifts, which was inconsistent with his previous engagement with EPA. The Commission believed lack of current engagement did not necessarily foreshadow lack of future engagement, as Simounds may cease work with the competitor of EPA.
The Commission ruled the matter would be subject to future listing.
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