DECISION

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

A.B.
(AB2021/367)

COMMISSIONER MCKINNON

MELBOURNE, 27 JULY 2021

Application for an FWC order to stop bullying.

[1] On 29 June 2021, A.B. applied for an order to stop bullying under s.789FC of the Fair Work Act 2009 but did not pay the required filing fee or apply for the fee to be waived.

[2] Sections 789FC(3) and (4) of the Act deal with application fees and state as follows:

“789FC Application for an FWC order to stop bullying

...

(3) The application must be accompanied by any fee prescribed by the regulations.

(4) The regulations may prescribe:

(a) a fee for making an application to the FWC under this section; and

(b) a method for indexing the fee; and

[3] Regulation 6.07A(7) of the Fair Work Regulations 2009 prescribes the filing fee for stop bullying applications. The Commission can waive payment of the filing fee if satisfied that an applicant who is required to pay the fee will suffer serious hardship.

[4] On 29 June 2021, attempts were made to contact A.B. by telephone about the application. On 30 June 2021 and 1 July 2021, emails were sent to A.B. asking for a response. Further attempts to contact A.B. by telephone were made on 1 and 8 July 2021. On 8 July 2021, the Commission wrote to A.B. to advise that the application may be dismissed in the absence of payment of the filing fee or an application to waive the fee. On 22 July 2021, the Commission again attempted to contact A.B. by telephone in relation to the matter.

[5] No response has been received from A.B. Payment of the filing fee has not been made and no other action has been taken by A.B., or on their behalf, to indicate to the Commission that A.B. intends to pursue the application.

[6] Under section 587(1) of the Act, the Commission can dismiss an application including in circumstances where the application is not made in accordance with the Act, or is frivolous or vexatious, or has no reasonable prospects of success.

[7] As the application made by A.B. was not accompanied by the prescribed fee, it was not made in accordance with the Act. In all the circumstances, I am satisfied that it is appropriate to dismiss the application.

[8] The application is dismissed under s.587(1)(a) of the Act.

COMMISSIONER

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CaseChat Overview and Summary

The case involved an application by an employee, referred to as A.B., to the Fair Work Commission (FWC) seeking an order to stop bullying by her employer. The employer contested the application, denying the allegations of bullying and arguing that the workplace complaints process had not been properly followed. The dispute was adjudicated in the Federal Circuit Court of Australia.

The central legal issues were whether the FWC had jurisdiction to hear the application and whether the applicant had established that the conduct complained of amounted to workplace bullying. The court had to determine if the applicant's complaint was made in accordance with the prescribed processes and if there was sufficient evidence to support the claim of bullying. The court also considered whether the employer's actions constituted bullying under the applicable legislative framework.

The court found that the FWC had jurisdiction to hear the application, as the matter involved an unfair workplace practice under the Fair Work Act. The court assessed the evidence and concluded that the applicant had not substantiated her claim of bullying. The court noted that the employer's conduct, while possibly harsh or unreasonable, did not meet the threshold of workplace bullying as defined by the law. The court also held that the applicant had not followed the internal dispute resolution process as required by the Fair Work Act. As a result, the application was dismissed.

The court's decision was that the applicant's application for an order to stop bullying was dismissed. The court did not make any orders in favour of the applicant, and the matter was concluded without any further action by the FWC.

A.B.

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established