DECISION

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

Mohamed Aly
v
Commonwealth Bank of Australia; Michelle Gentile; Russell Hayman
(AB2015/114)

Application for permission to be represented

[1] On 30 March 2015 I issued direction for the hearing of an application by Mr Aly (the Applicant) for an order to stop bullying.

[2] The directions, in addition to requiring the filing of material with the Commission, required either party seeking to be represented by a lawyer or paid agent at the hearing of the matter to make such an application as soon as possible, to enable the question of representation to be determined prior to the hearing.

[3] On 11 May 2015 Commonwealth Securities Limited (CommSec or the Employer Respondent) sought permission to be represented by a lawyer or paid agent.

[4] On 12 May 2015 this application was sent to the Applicant. He was asked to make any submissions he wished on the matter by 5:00pm Friday 15 May 2015. No submissions were received from him.

[5] I have therefore determined the application on basis of the submissions of CommSec.

Legislative provisions

Section 596 of the Act states:

596 Representation by lawyers and paid agents

(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.

(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:

(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or

(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

[6] It is well accepted that a decision on whether to grant permission is a two stage process. In the first instance the Commission must be satisfied that one of the conditions in s.596(2) is met. The second stage is for the Commission to decide if permission should then be granted. Permission cannot be granted if one of the conditions in s.596(2) is not met.

Efficiency given complexity

[7] Section 596(2)(a) requires a consideration of whether the matter could be dealt with more efficiently given the complexity of the matter. That is, the matter must be complex in the first instance prior to a consideration of whether it could be dealt with more efficiently.

[8] The Respondent adequately summarises in its submissions the relevant background to the application. In particular it notes that much of the claim of the Applicant relates to performance management of the Applicant undertaken by the employee respondents and grievance lodged by him. It is in relation to these processes that the Applicant claims he was subject to bullying.

[9] The Respondent submits that complexity is added to the matter because there has been no benefit of conciliation such that the scope of matters in dispute could be determined.

[10] The Respondent further submits that it has raised a jurisdictional objection to the application and, relying on the decision in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v UGL Resources Pty Ltd, 1 says that it would be reasonable to grant permission.

[11] The jurisdiction objection the Respondent relies on is that the actions taken by the Respondent in relation to the Applicant were reasonable management actions. 2

[12] It is not the case that this is a jurisdictional objection in the strict sense. The Applicant has made a proper application in that he reasonably believes he has been bullied at work. 3 Whether he has, in fact, been bullied is a matter for determination. The provisions of s.789FD(2) are not a jurisdictional bar to the matter going to hearing, but rather a clarification of what falls outside the scope of being bullied at work in that determination. It does not operate to limit the Applicant’s belief. I do accept however that the determination of the matter will require a consideration of whether what occurred is ‘reasonable management action carried out in a reasonable manner’.

[13] This case rests on the determination of whether the actions taken by the Respondent in performance managing the Applicant, and otherwise interacting with the Applicant at work, amounts to bullying. The Applicant has filed substantial material in relation to the actions taken against him at work and has also sought access to documents produced by the Respondent as a result of an Order issued by the Commission.

[14] The matters for determination in this instance do not just go to the conduct of the employee Respondent in undertaking performance management, but other actions the Applicant perceived to be bullying including claims of micro management, application of policy, the performance requirements placed on the Applicant as well as a number of other matters.

[15] The determination of whether these matters, either individually or in some combination, amount to bullying at work as defined in the Act will require a level of unpacking of a number of incidents and assimilation of asserted facts and supporting evidence.

[16] For these reasons I am satisfied that the matter has a level of complexity and that the matter will be dealt with more efficiently given this complexity.

[17] Given my finding in respect to section 596(2)(a) there is no need for me to consider s.596(2)(b) or (c).

Should I grant permission?

[18] Having found that the prerequisite for the grant of permission has been established I am satisfied that permission should be granted.

COMMISSIONER

Final written submissions:

Respondent 11 May 2015

 1   [2012] FWA 2966.

 2   Section 789FD(2).

 3   Section 789FC.

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