A.G.

[2021] FWC 2763

[2021] FWC 2763

FAIR WORK COMMISSION

DECISION

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

A.G.
(AB2021/214)

DEPUTY PRESIDENT CLANCY MELBOURNE, 14 MAY 2021

Application for an FWC order to stop bullying – Application dismissed.

[1] On 18 April 2021, A.G. 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 was incomplete in that it did not provide the full name or an email address for the Person Named. It was not clear whether A.G. was still employed. The remedies sought appeared to fall outside of the Anti-Bullying jurisdiction as they were broadly wages and compensation related. The application appeared to allege adverse actions and appeared to indicate that A.G. was out of the country.

[3] On 19 April 2021, the Commission attempted to telephone A.G. on his nominated telephone number but was unable to reach him. A voicemail message was left requesting that he call the Commission to discuss his application.

[4] On 20 April 2021, an SMS message was sent to A.G. requesting that he contact the Commission.

[5] A.G. telephoned the Commission on 20 April 2021 and a preliminary discussion to discuss the jurisdiction and the deficiencies of his application took place. The process, steps, and timeframes were confirmed. A direct email address for A.G. was obtained. A referral to the Workplace Advisory Service was discussed and accepted. A discussion was had about the remedies A.G. had set out at Question 7 and A.G. confirmed that he had contacted the Fair Work Ombudsman. A.G. confirmed that he was unsure of whether he was employed. A.G. confirmed that he would be in New Zealand the following week without a return ticket. The jurisdiction was explained to him, including the element of ongoing risk. It was suggested to him that he also look at the Unfair Dismissal jurisdiction and the General Protections jurisdiction. A.G. was also asked to provide the surname of the Person Named. A.G. did not confirm that he wished to proceed with the application.

[6] Following the telephone conversation, the Commission emailed correspondence to A.G. requesting that he update his application with the full name of the Person Named, as well as an email address for the Person Named, if known. The correspondence also noted that he had mentioned in the telephone call that he may want to change something on his application form. The letter requested that he make any such changes and send the completed form back to the Commission by 27 April 2021. The correspondence warned that if he did not do so, his application may be dismissed.

[7] On 27 April 202, the Commission attempted to telephone A.G. but was unable to reach him. A voicemail message was left requesting that he call the Commission. It was also noted that a letter would be sent to his email address that morning.

[8] Later the same day, final correspondence was emailed to A.G. referring to the correspondence from the Commission dated 20 April 2021 which noted that:

•  He may want to change something on his application form;

•  He was required to provide details about the person or people whom he says engaged in bullying at work.

[9] The letter noted that he needed to contact the Commission by 11 May 2021 to give the information requested or explain why no response had been made. The letter went on to explain that if A.G. did not do this, his case would very likely be dismissed without further notice.

[10] On 11 May 2021, a final telephone call was attempted to A.G. and a voicemail message was left advising that his application remained incomplete and a request was made that he either telephone the Commission or file his amended application. The message highlighted that this didn’t occur the application would be dismissed.

[11] A further telephone call was made to A.G.’s nominated support person and a voicemail message was left noting that A.G.’s application was incomplete. A request was made for the support person to either call the Commission or file the amended application as the application would be dismissed.

[12] On 12 May 2021, A.G.’s support person telephoned the Commission. He noted that A.G. was still in New Zealand with no return date. A detailed discussion was had, noting the removal of the risk of repeated bullying, the types of General Protections matters, Unfair Dismissals and the requirement to file within 21 days if terminated, amongst other things. A.G.’s support person stated that they had not taken up the Workplace Advisory Service referral. The Commission confirmed that if this matter was dismissed, it would not preclude the lodging of a new application for an order to stop bullying under s.789FC of the Act.

[13] In the circumstances, the non-compliant application has not been served upon any apparent respondent parties.

[14] 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.”

[15] It is not at all clear what the intentions of A.G. are because he has not responded to repeated invitations from the Commission to file an amended application and provide information. I can only infer he no longer wishes to pursue an application and observe that he may have faced some jurisdictional challenges in the event he decided to pursue it. In considering all the circumstances, I am satisfied that the relevant application was incomplete and has therefore not been made in accordance with the Act. A non-compliant application is directly contemplated by s.587(1)(a) of the Act. I am satisfied that it is appropriate in all the circumstances to dismiss the purported application.

[16] Accordingly, the present application is dismissed pursuant to s.587(1) of the Act. Of course, should A.G. wish to file a new application, there is nothing to prevent him from doing so.

DEPUTY PRESIDENT

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