Chelsea Olivia Phelps

[2024] FWC 742

[2024] FWC 742

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Chelsea Olivia Phelps

(AB2024/7)

COMMISSIONER HUNT BRISBANE, 21 MARCH 2024

Application for an FWC order to stop bullying

1. On 4 January 2024, Miss Chelsea Phelps made an application pursuant to s.789FC of the Fair Work Act 2009 (the Act) to the Fair Work Commission (the Commission) for an order to stop bullying. Miss Phelps had been employed by LBST Pty Ltd (LBST).

1. The matter was allocated to me on 2 February 2024. Within the material filed by the parties there was reference to Miss Phelps having resigned from her employment with LBST. Accordingly, in correspondence issued to the parties by my chambers on 6 February 2024, I requested that the parties advise the status of the employment relationship, noting that if Miss Phelps was no longer a worker as defined by the Act, there would be no future risk of her being bullied.

1. On 6 February 2024, Mr Braedan Allen, one of the Persons Named in the application, responded to my correspondence. Mr Allen declared that Miss Phelps had resigned her employment. Miss Phelps did not respond to my correspondence.

1. On 20 February 2024, having regard to Mr Allen’s correspondence, I requested Miss Phelps advise by 22 February 2024 as to how she wished to progress her application. No response was received.

1. Having received no correspondence from Miss Phelps, on 13 March 2024, I directed that she advise as to how she wished to progress her application by 15 March 2024. I noted that my preliminary view was that if Miss Phelps did not respond, her application would be dismissed for want of prosecution. Miss Phelps did not respond in accordance with my direction.

1. Section 587 of the Act provides as follows:

“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.

Note:   For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2)        Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, on the ground that the application:

(a)        is frivolous or vexatious;

(b)        has no reasonable prospects of success.

(3)        The FWC may dismiss an application:

(a)        on its own initiative; or

(b)        on application.”

Consideration

1. The words, “without limiting when FWC may dismiss an application” at the commencement of s.587(1) of the Act, establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

1. Miss Phelps has showed no willingness to progress her application in accordance with the Commission’s directions or otherwise. In the circumstances, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

COMMISSIONER

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