DECISION

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

A.S.
(AB2019/241)

COMMISSIONER HAMPTON

ADELAIDE, 4 JUNE 2019

Application for an FWC order to stop bullying.

[1] On 7 May 2019, A.S. made application for an order to stop bullying under s.789FC of the Fair Work Act 2009.

[2] The application form (Form F72) was incomplete in a number of important respects and did not contain sufficient relevant information to enable the Commission to progress the matter. Further, the application was not accompanied by the required filing fee or a completed waiver application.

[3] On 9 May 2019, A.S. was advised by telephone and letter that his application was incomplete and required further information and payment (or a fee waiver application), if he wished to proceed. A.S. advised that he intended seeking legal advice.

[4] On 16 May 2019, the Commission again telephoned and wrote to A.S. in relation to the matter. A.S. was advised that the application could not be advanced and may be dismissed if the required information and payment was not provided within 14 days. On 30 May 2019, the Commission made further attempts to contact A.S. in relation to the matter.

[5] No response has been received from A.S., the required information and payment has not been provided, and no further action has been taken by him or on his behalf. In the circumstances, the incomplete and non-compliant application has not been served upon any apparent respondent parties.

[6] 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

[7] 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. However, a non-compliant application is directly contemplated by s.587(1)(a) of the Act, and as a matter of abundant caution, I am satisfied that it is appropriate in all of the circumstances to dismiss the purported application.

[8] Further, given the absence of the details required to progress the purported application and the fact that it has, in effect, been abandoned by the applicant, there is also no reasonable prospects of its success.

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

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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

The applicant in this case sought an order from the Fair Work Commission (FWC) to prevent what they described as workplace bullying. The application was heard by Deputy President R.P. who was required to determine whether the applicant had demonstrated that they had been subjected to repeated unreasonable behaviour at work which created a risk to health and safety. The respondent to the application was the applicant’s employer.

The central issue before the FWC was whether the applicant had established that they were subjected to behaviour that could be characterised as workplace bullying. The applicant argued that they had been subject to a series of incidents over a period of months which had created a hostile work environment. The respondent, on the other hand, argued that while there had been some disagreements and conflicts at work, these did not amount to workplace bullying.

In assessing the evidence, the FWC found that while there had been some conflict between the applicant and their supervisor, this did not reach the threshold of repeated unreasonable behaviour that would create a risk to health and safety. The FWC noted that there was no evidence of physical threats or other extreme behaviour. Instead, the disputes appeared to be related to workplace disagreements over the performance of certain tasks and responsibilities. The FWC concluded that the applicant had not demonstrated that they had been subjected to workplace bullying.

The FWC dismissed the application and made no order. The applicant was given leave to appeal the decision to the Federal Circuit and Family Court of Australia.

A.S.

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established