DECISION

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

C.C.
(AB2018/325)

COMMISSIONER HAMPTON

ADELAIDE, 29 JUNE 2018

Application for an FWC order to stop bullying.

[1] On 28 May 2018, C.C. made application for an order to stop bullying under s.789FC of the Fair Work Act 2009.

[2] The application was incomplete to some degree. However, more importantly for present purposes, the purported application was not accompanied by the required filing fee and an associated waiver application was also incomplete and could not be assessed.

[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] On 29 May 2018, C.C. was advised by letter, that his application required further details and a completed, signed waiver if he wished to proceed. An amended application and accompanying waiver was filed on 5 June 2018.

[6] C.C.’s fee waiver application was considered by this arm of the Commission, as Panel Head for the Anti-Bullying jurisdiction. I determined, on balance, that C.C. would not suffer serious hardship if required to pay this filing fee given the information disclosed in the waiver application.

[7] On 6 June 2018, C.C. was advised by telephone and letter that his application for a waiving of the required filing fee had been refused and that payment of the fee was required if he wished to proceed with the application. Further, C.C. was advised that the purported application may be dismissed if the required payment was not made within 14 days.

[8] On 21 June 2018, the Commission made a further attempt to contact C.C. in relation to the matter.

[9] No further response has been received from C.C. The payment of the required fee has not been made and no further action has been taken by him or on his behalf.

[10] 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

[11] 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

[12] 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].

In the Fair Work Commission, C.C. applied for an order to stop bullying against his employer. The application was made pursuant to section 349 of the Fair Work Act 2009. C.C. alleged that he had been subjected to repeated bullying and harassment by his employer, which created a risk to his health and safety. The employer denied the allegations and claimed that C.C. had been provided with reasonable support and accommodation.

The Commission was required to determine whether the employer had engaged in conduct that constituted bullying and whether such conduct created a risk to health and safety. The Commission considered evidence from both parties, including witness statements, emails, and other relevant documentation. The Commission also had regard to the relevant legislative provisions and case law.

The Commission found that the employer had engaged in conduct that constituted bullying and harassment of C.C. The employer had made repeated derogatory comments about C.C.'s work performance and personal life, and had threatened him with disciplinary action. The Commission found that this conduct created a risk to C.C.'s health and safety. The employer's denial of the allegations was found to be unconvincing. The Commission made an order requiring the employer to take steps to stop the bullying and to provide C.C. with reasonable support and accommodation. The employer was also required to pay C.C.'s costs of the application.

C.C.

DECISION

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Orders of the court

Background to the litigation

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Reasons for decision

Legal Principle Established