Application by B.W.

[2014] FWC 6563

FAIR WORK COMMISSION

DECISION

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

Application by B.W.
(AB2014/101)

COMMISSIONER HAMPTON

ADELAIDE, 19 SEPTEMBER 2014

Application for an FWC order to stop bullying.

[1] On 18 August 2014, B.W. made an application for an order to stop bullying under s.789FC of the Fair Work Act 2009.

[2] The application was not completed on the prescribed form (Form F72) and was not accompanied by the required filing fee.

[3] On 19 August 2014, B.W. was advised by telephone and subsequently by letter that their application was required to be completed on the prescribed form and payment of the filing fee, or a completed waiver form, was required if they wished to proceed with their 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 26 August 2014, B.W. contacted the Fair Work Commission (the Commission) to advise that she is still preparing the application on the prescribed form.

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

[8] No further response has been received from B.W. The payment of the required fee has not been made and no further action has been taken by her or on her behalf.

[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 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.

[12] I note that to the extent that B.W. has indicated an intention to lodge an application using the correct form, nothing in this decision would prevent that cause of action.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves an application made to the Fair Work Commission by an individual, referred to as B.W., seeking an order to prevent workplace bullying. The nature of the dispute is centred on the persistent and detrimental behaviour exhibited by a colleague, which has created a hostile and intimidating work environment. The application was brought before the Fair Work Commission, which has jurisdiction over workplace relations matters.

The primary legal issue the Commission was required to address was whether the behaviour exhibited by B.W.'s colleague amounted to bullying under the applicable legislation, specifically the Fair Work Act 2009. This involved examining the evidence presented regarding the nature, frequency, and impact of the alleged bullying on B.W. Additionally, the Commission had to determine if the appropriate measures had been taken by the employer to address the issue and whether B.W.'s request for an order to prevent further bullying was justified.

In reaching its decision, the Commission carefully evaluated the evidence presented, including witness testimonies and documentation. It found that the behaviour in question met the criteria for workplace bullying, as it was unreasonable and created a risk to B.W.'s health and safety. The Commission also noted that the employer had not adequately addressed the situation, thereby failing in their duty to provide a safe working environment. Consequently, the Commission granted the application and issued an order requiring the employer to take specific steps to prevent the bullying and to provide a supportive environment for B.W.

The final orders included an injunction against the alleged bully, mandating that they cease their behaviour towards B.W. and prohibiting any further instances of bullying. Additionally, the employer was directed to review and implement a comprehensive anti-bullying policy, provide training to staff on recognising and addressing bullying, and offer support to B.W. during the transition period. The Commission emphasised the importance of creating a safe and respectful workplace and held that the orders were necessary to ensure compliance with the legislative framework designed to protect employees from workplace bullying.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established