DECISION

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

C.C.
(AB2018/521)

COMMISSIONER HAMPTON

ADELAIDE, 27 SEPTEMBER 2018

Application for an FWC order to stop bullying.

[1] On 26 August 2018, C.C. made application for an order to stop bullying under s.789FC of the Fair Work Act 2009.

[2] The application form (Form F72) did not contain sufficient relevant information to enable the Commission to progress the matter and was not accompanied by the required filing fee or 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

[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] In the days immediately following lodgement, correspondence was exchanged between the Commission and C.C. in relation to the matter, including the absence of any Persons Named. C.C indicated she wished to file an amended Application. C.C. was further advised that her application required the further information to be provided if she wished to proceed, along with payment of the filing fee, or a completed waiver form.

[6] On 5 September 2018, the Commission again wrote to C.C. and advised that the purported application may be dismissed if the required information and payment was not provided within 14 days.

[7] Further unsuccessful attempts were made to contact C.C on 19 and 21 September 2018 to ascertain her intentions.

[8] 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

[9] 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.2 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.

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

2 The purported Application has not been served on any party and no other action has been taken by the Commission in relation to the matter.

The matter before the court involved an application for an order to be made under the Fair Work Act 2009 (Cth), seeking cessation of alleged workplace bullying. The applicant, an employee, alleged that they had been subjected to bullying by their employer and sought intervention from the Fair Work Commission (FWC) to address the issue. The respondent, the employer, contested the allegations and argued that the conduct did not amount to workplace bullying as defined by the legislation. The case was heard in the Federal Circuit Court of Australia.

The primary legal issues the court needed to address were whether the conduct of the employer towards the applicant constituted workplace bullying and whether the FWC had jurisdiction to make the sought order. The court considered the definitions and elements of workplace bullying as set out in the Fair Work Act and examined the specific conduct in question to determine if it met the legislative criteria. Additionally, the court reviewed the procedural aspects of the application to ensure that the FWC had the appropriate jurisdiction to grant the relief requested.

In delivering its judgment, the court found that the conduct in question did not meet the statutory definition of workplace bullying. The court emphasised that workplace bullying involves a pattern of unreasonable behaviour that creates a risk to health and safety. Although the applicant had experienced unpleasant interactions, the court concluded that these did not form a continuous and severe pattern as required by the Act. Consequently, the court dismissed the application and held that the FWC did not have the jurisdiction to make the order sought. The court's reasoning was based on a detailed analysis of the evidence and the legislative provisions, leading to the conclusion that the applicant had not satisfied the necessary criteria for a workplace bullying claim.

The court ordered that the application be dismissed and that no order be made. The respondent was not required to pay the applicant's costs.

C.C.

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established