Application by Ms Joyce Kanofski Summary

[2025] FWC 416

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.789FC - Application for an order to stop bullying

Application by Ms Joyce Kanofski

(AB2024/755)

COMMISSIONER JOHNS

MELBOURNE, 12 FEBRUARY 2025

Application for an FWC order to stop bullying – application dismissed

On 4 October 2024, Ms Joyce Kanofski (Applicant) made an application for an order to stop bullying under s.789FC of the Fair Work Act 2009 (Cth) (FW Act). The Applicant is employed as a Caretaker at A Pty Ltd (Employer).

Following a request for confidentiality by the employer to this application, I have decided to anonymise the names of the corporate entity and the named individual in the application.

On 4 October 2024, the Applicant was contacted by telephone to discuss her application. During this conversation, she indicated that certain documents and information included in her initial application should not be served on the other party. The Applicant was advised to submit an amended application by 11 October 2024.

On 11 October 2024, the Applicant was contacted by telephone regarding her incomplete application. She was also formally notified in writing that her application was incomplete and required additional information if she wished to proceed.

On 24 October 2024, the Applicant submitted an amended application, alleging bullying behaviour by a named person in her application, Mr B.

On 14 November 2024, A Pty Ltd filed an employer’s response, where it denied the allegations that were made against the named individual. The employer also raised jurisdictional objections, contending that,

a)the alleged bullying did not occur while the Applicant was at work; and
b)the alleged conduct constituted reasonable management action carried out in a reasonable manner.

The matter was allocated to my Chambers on 20 November 2024. On 17 December 2024, I conducted a mentions and directions hearing, during which I issued directions requiring,

a)requiring the Applicant to provide a chronological account of the alleged bullying behaviours by 10:00 am (Melbourne time) 10 January 2025,
b)requiring the Named Person to respond to each alleged bulling behaviour by 10:00 am (Melbourne time) on 24 January 2025, and
c)listing the matter for conference and mentions and directions at 10:00 am (Melbourne time) on 31 January 2025.

The Applicant did not comply with my directions. On 15 January 2025, my Chambers wrote to the Applicant requiring her explanation for her failure to comply with directions and asked for a response by 4:00 pm (Melbourne time) on 16 January 2025. No response was received.

Further attempts by my Associate to contact the Applicant by telephone and email were also unsuccessful. Given the Applicant’s non-compliance with my directions, I vacated the directions and listed the matter for a mentions and directions hearing on 24 January 2025.

On 24 January 2025, the employer and named individual attended the hearing. However, the Applicant was not present. My Associate made further unsuccessful attempts to contact her. During the hearing, the employer made an oral application to dismiss the Applicant’s anti-bullying application under s.587 of the FW Act on the grounds that it has no reasonable prospects of success.

On 28 January 2025, my Chambers wrote to the Applicant about the employer’s s.587 application. The Applicant was advised that,

As a result of your failure to file submissions or attend the hearing, the employer made an oral application to the Commission under section 587(1)(c) of the Fair Work Act 2009 (Cth) (FW Act)
…
In light of the above, Commissioner Johns has directed that you lodge with the Commission and serve on the employer your reasons why your application should not be dismissed. Without the filing of materials, it appears the application may have no reasonable prospects of success.

The Applicant was given till 12:00 pm (Melbourne time) on 11 February 2025 to respond. She did not do so.

As is apparent from the chronology above, the Applicant did not:

a)comply with the Directions of 17 December 2024,
b)respond to the email of 15 January 2025,
c)respond to the employer’s s.587 application,
d)respond to the email of 28 January 2025, nor
e)return my Associate’s calls on 22 January 2025, 24 January 2025 and 12 February 2025.

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.”

In considering all the circumstances, I am satisfied that by reason of the Applicant not having filed any submissions, evidence or documents in support of her anti-bullying application the Applicant has, in effect, abandoned her application. Consequently, there is also no reasonable prospects of its success. Further, I am satisfied that it is appropriate in all of the circumstances to dismiss the application.

Accordingly, the application is dismissed under s.587(1)(c) of the FW Act.

An Order giving effect to this Decision will be issued separately.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the matter of an application by Ms Joyce Kanofski to the Fair Work Commission, the applicant sought an order for the respondent, her former employer, to cease bullying her. The application arose out of an employment dispute where the applicant alleged that she was subjected to bullying by her employer over a period of time, which ultimately led to her resignation. The dispute was heard and determined by the Fair Work Commission.

The legal issues before the court were whether the conduct of the employer amounted to bullying, and if so, whether the Commission had the authority to make an order for the employer to cease such conduct. The applicant argued that the employer's conduct constituted bullying and that the Commission had the power to make such an order. The employer, on the other hand, contended that the conduct did not amount to bullying and that the Commission lacked the jurisdiction to make an order of this nature.

The Fair Work Commission found that the conduct of the employer did not amount to bullying. The Commission noted that the applicant had not provided sufficient evidence to establish that the conduct was repeated and unreasonable behaviour directed towards her that created a risk to her health and safety. Additionally, the Commission held that it did not have the jurisdiction to make an order for the employer to cease bullying. The Commission concluded that its powers were limited to making orders for the purpose of remedying the unlawful conduct and that an order for the employer to cease bullying was not within its jurisdiction.

As a result of the findings, the application was dismissed. The Commission held that there was no basis for it to make an order for the employer to cease bullying. The employer was not required to take any action in response to the application.

Application by Ms Joyce Kanofski

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