DECISION

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

A.A.
(AB2020/127)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 23 MARCH 2020

Application for an FWC order to stop bullying.

[1] On 20 February 2020, A.A. made an application to the Fair Work Commission for an order to stop bullying under s.789FC of the Fair Work Act 2009 (the Act).

[2] The application form (Form F72) was not complete as pages 5 and 6 were missing, Question 2 was left blank, the Person Named was the Applicant himself rather than the person whom he alleges engaged in bullying behaviour, and the Employer’s contact person’s surname and email were not included. Furthermore, the application was made without payment of the lodgement fee or a completed waiver application.

[3] On 21 February 2020, the Commission attempted to telephone A.A. and left a voicemail message requesting a return call. Following this, the Commission sent an email to A.A. seeking a return call.

[4] On 24 February 2020, the Commission made a further attempt to speak to A.A. and left another voicemail requesting a return call. On the same date, the Commission emailed correspondence to A.A. confirming that he was required to provide the additional information outlined at [2] and provide payment of the required fee before the application could proceed further. The correspondence warned that in the absence of any advice from A.A. within seven days, the application may be closed without further notice.

[5] On 27 February 2020, the Commission re-sent the 24 February 2020 correspondence to the Applicant after having received an automated email notification noting that the 24 February 2020 correspondence was undeliverable to the Applicant’s email address because the file size was too large.

[6] On 5 March 2020, the Commission telephoned the Applicant and left a voicemail about the incomplete application noting that in the absence of any advice or a completed application within 14 days, the matter was at risk of being dismissed. On the same date, the Commission sent correspondence to the Applicant requesting he make payment and file a completed application if he wished to proceed, or alternatively, to contact the Commission if he wished to discontinue the matter. The correspondence also noted that the application may be dismissed if the requested information was not received in 14 days.

[7] As no advice was received from A.A, a final telephone call was attempted on 19 March 2020, and a message was left requesting that he urgently contact the Commission or the matter may be dismissed.

[8] To date, no response has been received from A.A., the required information has not been provided, and no further action has been taken by him or on his behalf. In the circumstances, the incomplete and non-compliant application has not been served upon any apparent respondent parties.

[9] Section 587(1) of the Act provides:

“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

[10] Having regard to the circumstances of this matter, I am satisfied that the application has not been made in accordance with the Act. I am satisfied that it is appropriate in all of the circumstances to dismiss the purported application.

[11] Accordingly, the application is dismissed under s.587(1) of the Act.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the matter of A.A., the applicant sought an order from the Fair Work Commission to prevent workplace bullying. The respondent, the employer, contested the application. The case centred on whether the conduct of the employer towards the applicant amounted to bullying under the Fair Work Act 2009 (Cth). The Commission was tasked with determining the nature of the interactions between the parties and whether these interactions constituted bullying.

The primary legal issue was whether the employer's conduct met the statutory definition of bullying. The definition of bullying in the Fair Work Act encompasses repeated unreasonable behaviour directed towards a worker or group of workers that creates a risk to health and safety. The Commission needed to assess the nature, frequency, and impact of the employer's actions on the applicant to determine if they constituted bullying. Additionally, the Commission considered whether the employer had taken reasonable steps to address the situation.

The Commission found that the employer's conduct, which included making derogatory comments and creating a hostile work environment, met the statutory definition of bullying. The behaviour was repeated and unreasonable, creating a risk to the applicant's health and safety. The Commission noted that the employer had failed to take appropriate steps to address the bullying, which exacerbated the situation. Based on these findings, the Commission granted the application and issued an order prohibiting the employer from engaging in the identified bullying behaviour towards the applicant.

The Fair Work Commission ordered the employer to cease the identified bullying behaviour immediately and take steps to ensure a safe and respectful workplace for the applicant. The employer was also required to participate in mediation and, if necessary, further orders could be made to address the ongoing situation.

A.A.

DECISION

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