A.P.

[2020] FWC 2838

[2020] FWC 2838

FAIR WORK COMMISSION

DECISION

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

A.P.
(AB2020/296)

DEPUTY PRESIDENT CLANCY MELBOURNE, 1 JUNE 2020

Application for an FWC order to stop bullying.

[1] On 5 May 2020, A.P. made an application for an order to stop bullying under s.789FC of the Fair Work Act 2009 (the Act).

[2] The application was not accompanied by the prescribed fee or an application for a waiver of the prescribed fee.

[3] On 6 May 2020, the Commission attempted to telephone A.P. in relation to the outstanding fee but was unable to reach him, so a voicemail message was left requesting a return call. Following this, the Commission emailed A.P. on his nominated email address requesting contact.

[4] A.P. contacted the Commission on the same day, during which he advised he would file an amended application. An amended application form was received by the Commission shortly after.

[5] On 7 May 2020, the Commission telephoned A.P. to request payment of the required fee. Later the same day, the Commission emailed correspondence to A.P. seeking payment within seven days, warning that the application may otherwise be closed without further notice in the absence of any advice from him. The option of making application for a waiver of the prescribed fee was also raised by the Commission. Following this, the Commission received a voicemail and email from A.P. both advising that he wished to make payment of the required fee on Friday, being 8 May 2020.

[6] On 8 May 2020, the Commission telephoned A.P. who advised that he wished to await the outcome of a related matter before deciding whether he would make payment and pursue his application. The Commission’s records indicated that A.P. intended to make his decision the following week and would advise accordingly.

[7] In the following week on 14 May 2020, the Commission again telephoned A.P. who advised that the proceedings in the related matter had been adjourned and that he was unable to pay the application fee. The Commission advised A.P. that he would have another 14 days to provide payment. Final correspondence was emailed to A.P. which warned that unless he made payment of the required fee within 14 days, the application would be referred to the Panel Head for anti-bullying matters and that the Commission may decide to exercise its power under s.587(1)(a) of the Act to dismiss the application without further notice to him. This correspondence also made reference to the option A.P. had to apply for a waiver of the prescribed fee.

[8] As no contact was received from A.P., on 28 May 2020, the Commission attempted to contact him and left a voicemail message requesting that he attend to making payment of the application that same day or else the matter was likely to be dismissed.

[9] To date, no response has been received from A.P. and the required fee has not been paid, nor has an application been made for a waiver of it. In fact, no further action at all has been taken by A.P. or on his behalf. In the circumstances, the incomplete application has not been served upon any apparent respondent parties.

[10] 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.”

[11] 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.

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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