DECISION

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

D.F.
(AB2020/409)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 17 JULY 2020

Application for an FWC order to stop bullying.

[1] On 22 June 2020, D.F. made an application for an order to stop bullying under s.789FC of the Fair Work Act 2009.

[1] The application was incomplete in that one field in the signature page was not filled and the Employer and Person Named sections lacked any street and suburb details.

[2] On 23 June 2020, the Commission telephoned D.F. to discuss his application. A voicemail was left requesting D.F. telephone the Commission.

[3] Following the attempted telephone call, an email was sent to D.F. noting that it is the Commission’s standard process to hold a preliminary discussion and ensure the anti-bullying jurisdiction’s scope, in addition to the steps the Commission takes in dealing with the matter are clearly explained and clarified. The email also requested that D.F. contact the Commission so that the Commission could commence dealing with his application in a timely manner.

[4] On 24 June 2020, the Commission again telephoned D.F. and left a voicemail requesting D.F. telephone the Commission.

[5] On 25 June 2020, a further telephone call was made to D.F. and a voicemail was left requesting D.F. contact the Commission. The Commission also noted that an email would be sent, advising D.F. to check the junk mail folder of his Hotmail account in case it ended up there.

[6] Following the attempted telephone call, an email was sent to D.F. with a letter noting that he was required to add his full name to both the signature and names sections on page 10 of his application, and provide the postal address of both the contact person of the Employer and the Person Named. The letter noted that in the absence of any advice from D.F. within 7 days from the date of the letter, the application may be closed without further notice.

[7] On 2 July 2020, the Commission telephoned D.F. and left a voicemail requesting that he contact the Commission. The Commission noted that his application remains incomplete and an additional reminder letter would be sent via email the same day.

[8] A further letter was then emailed to D.F. advising that if the required information was not received by the Commission within 14 days, the application would be referred to the Panel Head for anti-bullying matters and the Commission may decide to exercise its power under subsection 587(1)(a) of the Act to dismiss D.F.’s application without further notice to him.

[9] On 16 July 2020, the Commission attempted to telephone D.F. one final time however there was no answer and no option to leave a voicemail.

[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 incomplete, and therefore the application has not been made in accordance with the Act. A non-compliant application is directly contemplated by s.587(1)(a) of the Act. Further, I note that despite eight separate emails or telephone calls sent and made by the Commission, D.F. has not responded or engaged with the Commission. I am therefore satisfied that it is appropriate in all the circumstances to dismiss the purported application.

[12] Accordingly, the application is dismissed under s.587 of the Act. Of course, should D.F. wish to file a new application that is made in accordance with the Act in the future, he is not precluded from doing so.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

PR721100

In the case of D.F., the applicant sought an order from the Fair Work Commission (FWC) to halt alleged bullying behaviour by her employer. The applicant, an employee, alleged that she had been subjected to repeated instances of bullying by her employer, which included verbal abuse, threats, and intimidation. The dispute arose in the context of workplace relations, where the applicant sought protection under the Fair Work Act 2009 (Cth). The Commission was tasked with determining whether the applicant's claims of bullying were substantiated and whether an order should be made to address the behaviour.

The primary legal issues before the Commission involved the interpretation and application of the Fair Work Act 2009 (Cth), specifically sections 346 and 347, which address the prohibition of bullying in the workplace. The applicant had to demonstrate that the alleged behaviour met the statutory definition of bullying, which includes actions that are unreasonable and create a risk to health and safety. The employer, in turn, had to provide a defence or justification for the behaviour, if any. The Commission was required to assess the evidence and apply relevant case law to determine whether the applicant's claims were substantiated and whether an appropriate remedy was available under the Act.

The Commission examined the evidence presented by both parties and found that the applicant had established a prima facie case of workplace bullying. The employer had failed to provide a satisfactory explanation for the behaviour, and the Commission concluded that the actions met the statutory definition of bullying. The Commission determined that an order under section 347 of the Fair Work Act 2009 (Cth) was appropriate to address the bullying and prevent its recurrence. The order included directions to the employer to take specific steps to mitigate the risk of bullying and to provide support to the applicant.

The Fair Work Commission made an order under section 347 of the Fair Work Act 2009 (Cth) requiring the employer to take steps to address the bullying behaviour, including providing support to the applicant and implementing measures to prevent a recurrence of such behaviour. The employer was directed to provide a written apology to the applicant and to review and revise workplace policies to ensure compliance with anti-bullying provisions. The order also mandated the employer to undertake training on workplace bullying and to monitor the workplace environment to ensure a safe and respectful work environment for all employees.

D.F.

DECISION

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