INFORMED FLIGHT
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Case Note: Bullying Claim Brought Against Aviation Regulator by Non-staff Member…
Published: 5 March 2024
Intro note: As this article features the Fair Work Act 2009 (Cth) and has a workplace vibe about it (even though not being an employer-employee dispute per se), I’ve brought in the employment law expert – John Farren of Farren McRae Workplace Lawyers & Consultants, to collaborate with me on this article.
Naming names note: we won’t refer to the name of any individuals in this article in an attempt not to compound their name coming up on the internet. However, the names of all relevant individuals are publicly available through the formal FairWork Commission Decision itself, a link to which is available at the bottom of this article.
Ok, let get down to business, or the workplace…
The Application
On 5 May 2023, the Applicant made an application under the bullying provisions of the Fair Work Act 2009 (the Act) to the Fair Work Commission (the Commission) for an order to stop bullying (Main Application).
In summary, the bullying section of the Act provides that a worker who reasonably believes that they have been bullied at work may apply to the Commission, which if satisfied that:
(a) the worker has been bullied at work by an individual or a group of individuals; and
(b) there is a risk that the worker will continue to be bullied at work by the individual or group;
may make any order it considers appropriate to prevent the worker from being bullied at work by the individual or group.
The Situation
The Applicant is employed by a private drone goods, services and training provider; that is, they are not an employee of CASA although routinely deal with CASA in their role.
The Applicant considered that two Civil Aviation Safety Authority (CASA) officers had bullied him at work and would continue to bully him unless an order is made by the Commission.
The Commission held a telephone conference which did not resolve the issue and so a 3-day hearing was listed for 16-18 October 2023.
The bullying complaints refer to a number of events from 2015 to 2021 concerning allegations of things said by CASA representatives to, and about, the Applicant, as well as two CASA investigations into the Applicant concerning the Applicant’s drone operations with one involving the withdrawal of a counselling notice by CASA to the Applicant. There were also alleged delays in the Applicant being approved for various drone-related licences (these are set out in more detail at paragraphs [14] – [35] of the Decision).
CASA’s Application to Dismiss
On 24 August 2023 and before the 3-day hearing, CASA made an application to dismiss the Application on the grounds that the application did not have reasonable prospects of success.
CASA noted that the Commission may only make an order to stop bullying if the Commission is satisfied that: (a) The worker has been bullied at work by an individual or a group of individuals; and (b) There is a risk that the worker will continue to be bullied at work by the individual or group.
CASA also noted that the Applicant is not an employee of CASA. His interactions with the CASA representatives while he is at work occur in the context of him being the holder of various drone licenses and CASA being the regulatory body with oversight over such licenses.
In support of CASA’s application to dismiss the Main Application, CASA provided witness statements from 5 people.
The two CASA representatives accused of bullying denied any bullying, although did not want any further involvement with the Application and both agreed to give undertakings to exclude themselves from any interaction with the Applicant, and in particular, agreed to 13 conditions around no longer dealing or communicating with the Applicant. Also, another CASA representative not accused agreed to facilitate the non-communication of the two named CASA officers and the Applicant.
Due to CASA’s application to dismiss the Main Application, it became necessary to have a hearing to determine if the Applicant was at risk of future bullying, in light of the undertakings and agreements by the CASA representatives. On 27 September 2023, a hearing was held where 9 people gave evidence and were cross-examined.
Hearing of CASA’s Application to Dismiss
For the Commission to make an order to stop bullying, it must be satisfied that the worker was bullied at work and that there is a risk that the worker will continue to be bullied at work.
CASA and the two named representatives made arrangements that the CASA representatives will have no contact at all, or anything to do with the Applicant.
The Commission stated that it was is not necessary for the Commission to determine if the Applicant has been bullied by the CASA representative; rather, whether that CASA representatives could be entrusted to fulfil the commitments they had made not to have involvement with the applicant.
The Commission was satisfied that CASA has “implemented an effective ring-fencing” between the Applicant and the CASA representatives. The Commission was satisfied that with the measures put in place by CASA and the accused CASA representatives, there is no risk that the Applicant will continue to be bullied at work by either of the CASA representatives.
As a result of CASA’s application to dismiss the Main application, the Commission considered that it was not tasked with determining if the Applicant has been bullied in the past. Consequently, the Commission exercised its discretion to dismiss the Application for having not reasonable prospects of success.
Practical observations
This case is an interesting example of how undertakings can potentially be used to resolve an application to the Fair Work Commission for orders to stop bulling and, if not resolved by mutual agreement, to underpin an application to dismiss the proceeding. It also provides a good indication of the type of supporting evidence that needs to be led in order to give the Commission confidence that those offering undertakings are likely to honour them.
A link to the full Decision by the Commission is accessible here.
The Drone Lawyer
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5 March 2024