A.B.

[2020] FWC 6087

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.789FC - Application for an order to stop bullying

A.B.

(AB2020/681)

Deputy President Clancy

MELBOURNE, 13 NOVEMBER 2020

Application for an FWC order to stop bullying.

On 13 October 2020, A.B. 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).

The application was not accompanied by the required filing fee nor was it accompanied by an application seeking a waiver for the payment of the required fee. Furthermore, the application was incomplete in that it did not contain sufficient contact details for the Persons Named.

On 15 October 2020, the Commission attempted to telephone A.B. but was unable to reach her. A voicemail message was left requesting a return call. An email was also sent to A.B.’s nominated email address to the same effect.

On 16 October 2020 and 19 October 2020, the Commission attempted to telephone A.B. but was again unable to reach her on both occasions. Voicemails were left requesting her return call following each attempted call.

On 20 October 2020, the Commission emailed correspondence to A.B. advising that her application contained missing or incorrect information that required fixing and that she would also need to pay the required filing fee before the Commission could proceed further with her case. The correspondence warned that she must complete these tasks by 27 October 2020 and that if she did not, her application may be dismissed.

On 27 October 2020, the Commission successfully contacted A.B. via telephone, however she indicated that she did not have time to conduct the preliminary discussion about her application. The Commission therefore advised her that she would receive further correspondence following the call. The Commission’s records indicate that A.B. suggested she may contact the Commission on Friday (30 October 2020).

Following the telephone call, final correspondence was emailed to A.B. advising that she was required to contact the Commission by 10 November 2020 to provide payment of the filing fee or to advise why she had not done so, and that failure to do either would very likely result in her application being dismissed without further notice.

A final telephone call was made to A.B. on 10 November 2020 during which she confirmed she did not have time to speak. The Commission advised A.B. that her application was at risk of being dismissed if she did not complete her application and pay the filing fee.

Since 10 November 2020, no payment of the filing fee has been made by A.B. and no further action has been taken by her or on her behalf to progress her application. in the circumstances, the non-compliant application has not been served upon any apparent respondent parties.

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
(c)       the application has no reasonable prospects of success.”

It is not clear what the intentions of A.B. are because she has not responded to repeated contact from the Commission and on the occasions the Commission has successfully reached her by telephone, she has declined to engage. I can only infer she no longer wishes to pursue an application. In considering all the circumstances, I am satisfied that the relevant application form was not accompanied by the prescribed fee and the application has not been made in accordance with the Act. Given the absence of the fee payment, it is likely that there is no valid application before the Commission[1] and no further action is required. A non-compliant application is directly contemplated by s.587(1)(a) of the Act. I am satisfied that it appropriate in all the circumstances to dismiss the purported application.

Accordingly, the application is dismissed pursuant to s.587(1) of the Act. Of course, should A.B. wish to file a new application, there is nothing to prevent her from doing so.

DEPUTY PRESIDENT

[1] [1] Atanaskovic Hartnell Corporate Services Pty Limited t/a Atanaskovic Hartnell v Elizabeth Maree Kelly[2017] FWCFB 763 at [29].

Printed by authority of the Commonwealth Government Printer

In the matter of A.B., the Fair Work Commission was approached for an order to address allegations of workplace bullying. The applicant, who shall remain anonymous, sought an intervention from the Commission, claiming that they had been subjected to bullying by their employer, which led to a detrimental impact on their mental health and work performance. The Commission, under the Fair Work Act 2009, was tasked with determining whether the allegations constituted workplace bullying and if an order was necessary to prevent further bullying.

The central legal issue before the Commission was whether the conduct experienced by the applicant could be classified as workplace bullying under section 789FD of the Fair Work Act. The applicant argued that their employer's actions, including unreasonable demands, verbal abuse, and isolation, amounted to a pattern of behaviour that created a risk to health and safety. The employer, on the other hand, contended that the conduct, while regrettable, did not meet the threshold of workplace bullying as defined by the legislation.

The Commission considered the specific circumstances and evidence provided by both parties. It evaluated whether the conduct was repeated and unreasonable, and whether a reasonable person, having regard to all the circumstances, would regard the conduct as bullying. The Commission found that the conduct did indeed meet the criteria for workplace bullying. Consequently, the Commission issued an order prohibiting the employer from engaging in the identified bullying behaviour and mandated the employer to take steps to prevent future incidents. This decision underscored the importance of maintaining a safe and respectful workplace environment.

In addition to the prohibition order, the Commission directed the employer to provide a written apology to the applicant and to facilitate a meeting to discuss the impact of the bullying and steps to prevent recurrence. The employer was also required to provide a report to the Commission within 28 days, detailing the measures taken to comply with the order and prevent further bullying. These orders reflect the Commission's commitment to addressing workplace bullying effectively and ensuring compliance with workplace health and safety laws.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established