A.Y.B.

[2021] FWC 727

[2021] FWC 727

FAIR WORK COMMISSION

DECISION

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

A.Y.B.
(AB2021/16)

DEPUTY PRESIDENT CLANCY MELBOURNE, 11 FEBRUARY 2021

Application for an FWC order to stop bullying.

[1] On 15 January 2021, A.Y.B. 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 direct contact details for the Employer/Principal or the Person Named, question 7 was not completed and it was not accompanied by the required filing fee. It was, however, accompanied by a completed waiver application.

[3] 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

(c) the circumstances in which all or part of the fee may be waived or refunded.”

[4] The Fair Work Regulations 2009 prescribe a filing fee for stop bullying applications and Regulation 6.07A(7) provides as follows:

‘If the FWC is satisfied that the person making an application will suffer serious hardship if the person is required to pay the fee, no fee is payable for making the application.’

[5] On 18 January 2021, the Commission attempted to telephone A.Y.B. and left a voice message asking A.Y.B. to call the Commission regarding the application. Later the same day the Commission again attempted to call A.Y.B. but there was no answer. The Commission also sent an email to A.Y.B on the same date requesting that A.Y.B. call the Commission in order to progress her application.

[6] On 18 January 2021, the waiver application was considered by the National Practice Leader for the Anti-Bullying jurisdiction. It was determined, on balance, that A.Y.B. would not suffer serious hardship if required to pay this filing fee given the information disclosed in the waiver application. A letter was sent to A.Y.B. stating that the request for a waiver had been refused. The letter requested that A.Y.B. pay the application fee and explained that A.Y.B.’s case would not go any further until she had paid the fee.

[7] On 19 January 2021, the Commission attempted to telephone A.Y.B. again and left a voice message requesting a return telephone call. A.Y.B. rang the Commission during her morning tea break. The Case Manager explained her role, advised that question 7 of the application form had been left blank and that A.Y.B.’s waiver application had been refused. A.Y.B. said that she would call back that afternoon or the next morning. A.Y.B. stated that she was looking for employment elsewhere. The Case Manager explained that if the Commission did not hear back from her in this timeframe, another letter would be sent noting that the application was incomplete. The Case Manager also explained that the filing fee would need to be paid in order to progress her application.

[8] On 20 January 2021, the Commission attempted to telephone A.Y.B. and left a voice message reminding her that she had said that she would call back and referred A.Y.B. to the letter noting that the application was incomplete that the Case Manager had spoken of in the conversation the day prior. The Case Manager stated that this letter would be sent shortly. The Case Manager asked that A.Y.B. return her call.

[9] A letter was then sent to A.Y.B. on 20 January 2021 in relation to the matter. A.Y.B. was advised in writing that the purported application may be dismissed if she did not complete question 7, provide direct contact details for the Employer and the Person Named and return the form to the Commission by 27 January 2021. A.Y.B. was also advised that she would need to pay her application fee before her case could go any further.

[10] On 27 January 2021, the Commission made a further attempt to contact A.Y.B. in relation to the matter and left a voice message requesting an urgent phone call to the Commission or A.Y.B.’s application may be dismissed.

[11] A letter was then sent to A.Y.B., on 27 January 2021, requesting that she contact the Commission by 10 February 2021 to give the information requested or tell the Commission why she has not responded to the request for more information. The letter stated that if she did not do this, her case was very likely to be dismissed without further notice, and her case would be closed.

[12] On 10 February 2021, the Commission made a final attempt to telephone A.Y.B. and left a voice message requesting urgent contact and noting that A.Y.B.’s application may otherwise be dismissed.

[13] No response has been received from A.Y.B. The required information and payment have not been provided and no further action has been taken by her or on her behalf.

[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] 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, the lack of response from A.Y.B to repeated contact from the Commission, and the statement that she was looking for work elsewhere, I can only infer that A.Y.B. no longer wishes to pursue an application. 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.

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

DEPUTY PRESIDENT

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