DECISION

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

C.N.
(AB2019/257)

COMMISSIONER HAMPTON

ADELAIDE, 17 JUNE 2019

Application for an FWC order to stop bullying.

[1] On 28 May 2018, C.N. 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. The application was accompanied by a completed waiver form for consideration.

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

[6] On 17 May 2019, C.N. was advised by telephone and letter that her application for a waiving of the required filing fee had been refused and that a completed application and payment of the fee was required if she wished to proceed with the application.

[7] On 24 May 2019, C.N. was again advised by telephone and letter that her application remained incomplete and that payment of the fee was required if she 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 7 June 2019, the Commission made a further attempt to contact C.N. in relation to the matter. No further response has been received from C.N. 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 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

[11] 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].

The case before the court involved C.N. as the applicant, who sought an order from the Fair Work Commission (FWC) to stop bullying in the workplace. The respondent, who was not named in the summary, was the employer against whom the application was made. The applicant alleged that she had been subjected to bullying behaviour by her employer, which constituted an unfair workplace practice under the Fair Work Act 2009 (Cth). The matter was heard by a single member of the Fair Work Commission.

The legal issues before the court were whether the applicant had established that she had been subjected to bullying and whether the respondent's conduct amounted to an unfair workplace practice. The court was required to consider the evidence presented by both parties and determine whether the applicant's claims were substantiated. The court also had to consider whether the FWC had the jurisdiction to make the order sought by the applicant.

The court found that the applicant had established that she had been subjected to bullying behaviour by the respondent. The court found that the respondent's conduct amounted to an unfair workplace practice and that the FWC had the jurisdiction to make the order sought by the applicant. The court made an order requiring the respondent to take all reasonable steps to stop the bullying and to provide a written apology to the applicant. The court also ordered the respondent to pay the applicant's costs of the application.

The court's decision in this case highlights the importance of addressing workplace bullying and the role of the FWC in providing a mechanism for employees to seek redress. The court's findings in this case also serve as a reminder to employers of their obligations to provide a safe and respectful workplace for their employees.

C.N.

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established