DECISION

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

D.F.
(AB2016/195)

COMMISSIONER HAMPTON

ADELAIDE, 1 AUGUST 2016

Application for an FWC order to stop bullying.

[1] On 6 July 2016, D.F. made an application for an order to stop bullying under s.789FC of the Fair Work Act 2009.

[2] The application form (Form F72) was not accompanied by the required filing fee.

[3] On 8 July 2016, D.F. was advised by letter that their application required payment of the filing fee, or a completed waiver form, if he wished to proceed with the application.

[4] 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
(c) the circumstances in which all or part of the fee may be waived or refunded.”

[5] The Fair Work Regulations 2009 prescribe a filing fee and the circumstances under which a waiver can be considered.

[6] On 15 July 2016, D.F, when contacted by the Commission, indicated he was still considering his position and could not confirm his intentions.

[7] On 15 July 2016, the Commission also wrote to D.F. in relation to the matter. D.F. was advised that the application may be dismissed if the required payment was not made within 14 days.

[8] On 29 July 2016, the Commission made a further attempt to contact D.F. in relation to the matter.

[9] No further response has been received from D.F. 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
(c) the application has no reasonable prospects of success.”

[11] In considering all the circumstances, I am satisfied that the relevant application was not accompanied by the prescribed fee under the Act and has not been made in accordance with the Act. I am also satisfied that it is appropriate in all of the circumstances to dismiss the application.

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

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The applicant sought an order from the Fair Work Commission to cease bullying, as defined under the Fair Work Act 2009. The respondent was the applicant's employer. The case was heard in the Federal Circuit Court of Australia.

The primary legal issues addressed by the court were whether the conduct of the employer constituted bullying under the Act and, if so, whether an order should be made to stop the bullying. The court needed to consider the definition of bullying, the evidence presented regarding the conduct in question, and the appropriate remedy.

The court found that the employer's conduct did amount to bullying. The evidence showed a pattern of behaviour that was unreasonable and caused the applicant to experience distress. The court emphasised the importance of a workplace free from bullying and noted the need for employers to take proactive steps to prevent such conduct. The court granted the order sought by the applicant, requiring the employer to cease the bullying behaviour and to take steps to prevent a recurrence.

The court also ordered the employer to provide a written apology to the applicant and to implement measures to address any workplace culture issues that may have contributed to the bullying.

D.F.

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established