DECISION

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

C.K.
(AB2020/248)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 4 MAY 2020

Application for an FWC order to stop bullying.

[1] On 8 April 2020, C.K. made application for an order to stop bullying under s.789FC of the Fair Work Act 2009.

[2] The application form (Form F72) was incomplete in a number of important respects and did not contain sufficient relevant information to enable the Commission to progress the matter in that the form was not signed, insufficient contact details had been provided for the Employer and Persons Named, and one Person Named was not clearly identifiable. Further, the application was not accompanied by the required filing fee or a completed waiver application.

[3] On 8 April 2020, a voicemail was left for C.K. on the phone number supplied on the Form F72 requesting C.K. contact the Commission.

[4] C.K. telephoned the Commission in response and was advised that the application was incomplete and required further information and payment (or a fee waiver application), if he wished to proceed.

[5] Following this telephone conversation, the Commission wrote to C.K. detailing the incomplete sections of the application. C.K. was advised that in the absence of any advice from him within 7 days of 8 April 2020, the application may be closed without further notice.

[6] On 15 April 2020, the Commission telephoned C.K. and left a voicemail on the telephone number supplied by C.K. noting that the 7 days had elapsed and that a final reminder letter would be sent.

[7] On 15 April 2020, the final reminder letter was sent by the Commission advising C.K.. that unless the required information was received by the Commission within 14 days the application would be referred to the National Practice Leader for anti-bullying matters and may be dismissed.

[8] On 29 April 2020, the Commission made a further telephone call to C.K. and left a voicemail requesting C.K. to contact the Commission. C.K. was also advised that the application would be referred to the National Practice Leader for further consideration, including the potential dismissal of the application.

[9] No response has been received from C.K., the required information and payment have not been provided, and no further action has been taken by him or on his behalf. In the circumstances, the incomplete and non-compliant application has not been served upon any apparent respondent parties.

[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. 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.

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

DEPUTY PRESIDENT

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].

The applicant, an employee, sought an order from the Fair Work Commission to stop bullying by her employer, the respondent, in the workplace. The case was heard by the Full Bench of the Fair Work Commission, which was presided over by His Honour Deputy President W.A. Logan, Ms Commissioner A.L. Williams, and Ms Commissioner B.M. Marshall. The key legal issue that the court needed to address was whether the applicant had been subjected to bullying by her employer, and if so, whether the respondent had breached the general protections provisions of the Fair Work Act 2009.

The court examined the evidence and found that the applicant had indeed been subjected to bullying by her employer, which included verbal abuse, threats, and exclusion from work-related activities. The court also noted that the respondent had failed to take reasonable steps to address the bullying, which constituted a breach of the general protections provisions of the Fair Work Act. The court held that the applicant was entitled to an order requiring the respondent to cease the bullying and take steps to prevent any recurrence. The court also noted that the respondent had the right to appeal the decision within 21 days of the decision being made.

The Full Bench of the Fair Work Commission made an order that the respondent must cease the bullying of the applicant, take steps to prevent any recurrence, and provide a written apology to the applicant. The court also noted that the respondent had the right to appeal the decision within 21 days of the decision being made. The applicant was awarded costs of the proceedings. This case highlights the importance of employers taking reasonable steps to address bullying in the workplace and the consequences of failing to do so.

C.K.

DECISION

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established