A.M.

[2020] FWC 4503

[2020] FWC 4503

FAIR WORK COMMISSION

DECISION

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

A.M.
(AB2020/500)

DEPUTY PRESIDENT CLANCY MELBOURNE, 26 AUGUST 2020

Application for an FWC order to stop bullying.

[1] On 26 July 2020, A.M. made an application 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 accompanied by the required filing fee or a completed waiver application.

[3] The Commission conducted a preliminary discussion with A.M. via telephone on 27 July 2020, during which it was noted that her Form F72 contained allegations against a former employee. A.M. was queried about whether she would like to remove this former employee and in response, she advised the Commission that she would like to think about it and may amend her application. Furthermore, A.M. indicated that she would contact the Commission the next day to confirm if she would be filing an amended application as well as to make payment for the required filing fee.

[4] Following the telephone discussion on 27 July 2020, the Commission emailed correspondence to A.M. confirming that she had indicated she would like to amend her Form F72 and that the application was made without payment of the required filing fee. The correspondence noted that A.M. was required to provide her amended Form F72 with payment or a completed application for waiver (a form for which was also attached to the correspondence) and warned that in the absence of any advice within seven days, her application may be closed without further notice.

[5] On 3 August 2020, the Commission attempted to telephone A.M. and a voicemail message was left advising that a further reminder would be sent and inviting her to return the Commission’s call.

[6] Following the telephone call, the Commission issued final correspondence to A.M. warning that unless the information previously sought was provided within 14 days, her application would be referred to the Panel Head for anti-bullying matters where the Commission may decide to exercise its power under subsection 587(1)(a) of the Act and dismiss the application without further notice to her.

[7] As no response was received from A.M., the Commission attempted a final telephone call to her on 24 August 2020 and a voicemail message was left noting that the application remained incomplete and seeking her urgent return call.

[8] To date, no response has been received from A.M., the required payment has not been provided, and no further action has been taken by her or on her behalf. In the circumstances, the non-compliance 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

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

[10] 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 is appropriate in all of the circumstances to dismiss the purported application.

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

DEPUTY PRESIDENT

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