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[2014] FWC 7422

FAIR WORK COMMISSION

DECISION

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

A.N.
(AB2014/1393)

COMMISSIONER HAMPTON

ADELAIDE, 21 OCTOBER 2014

Application for an FWC order to stop bullying.

[1] On 26 August 2014, A.N. made an application for an order to stop bullying under s.789FC of the Fair Work Act 2009.

[2] The application form (Form F72) was not accompanied by the required filing fee but did include an application for waiver of the fee.

[3] On 27 August 2014, A.N. was advised in writing that his application for waiver of the required filing fee had been refused given his circumstances as revealed in the waiver application and in these circumstances payment of the prescribed filing fee was required if he intended to proceed with the application.

[4] 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

[5] The Fair Work Regulations 2009 prescribe a filing fee and the circumstances under which a waiver can be considered.

[6] On 3 September 2014, the Commission contacted A.N. by phone in relation to the matter. A.N. did not confirm payment of the prescribed fee and did not confirm whether he wished to proceed. A.N. advised that there was an internal process in progress at his workplace in relation to his complaint.

[7] On the same day, the Commission wrote again to A.N. in relation to the matter. A.N. was advised that the application may be dismissed without further notice or hearing if the required payment was not made within 14 days.

[8] The payment of the required fee has not been made and no further action has been taken by him or on his behalf in relation to the decision to refuse the fee waiver.

[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] In considering all the circumstances, I am satisfied that the relevant application was not accompanied by the prescribed fee under the Act and has not been made in accordance with the Act. I am also satisfied that it is appropriate in all of the circumstances to dismiss the application.

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

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, A.N. sought an order against his employer, which he alleged had exposed him to workplace bullying. The application was made under the Fair Work Act, and the matter was heard by Commissioner Smith. The applicant claimed that he had been subjected to unreasonable behaviour by his colleagues, including derogatory comments and exclusion from team activities, which had a detrimental impact on his mental health and job performance.

The central legal issue before the Commission was whether the applicant's experiences amounted to workplace bullying as defined by the Fair Work Act. The applicant had to demonstrate that the behaviour was repeated and unreasonable, and that a reasonable person, having regard to all the circumstances, would regard the behaviour as bullying. The employer contested the allegations, asserting that the conduct did not meet the statutory criteria for bullying.

After considering the evidence and arguments presented by both parties, the Commission found that the applicant had not been exposed to workplace bullying. The Commission noted that while the applicant had experienced some unpleasant interactions with his colleagues, these incidents were isolated and did not reach the threshold of repeated and unreasonable behaviour required by the legislation. The Commission concluded that a reasonable person in the applicant's position would not have regarded the conduct as bullying. Consequently, the application was dismissed.

The Commission ordered that the application be dismissed with no costs to either party.

A.N.

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