DECISION

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

D.K.
(AB2018/311)

COMMISSIONER HAMPTON

ADELAIDE, 12 JULY 2018

Application for an FWC order to stop bullying.

[1] On 22 May 2018, D.K. made application for an order to stop bullying under s.789FC of the Fair Work Act 2009.

[2] The application was not accompanied by the required filing fee or a completed waiver application.

[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] In the days immediately following lodgement, correspondence was exchanged between the Commission and the applicant concerning a potential jurisdictional issue; namely, whether the workplace was conducted by a ‘constitutionally-covered business’. D.K. indicated that she was considering her position and would advise the Commission of her intentions after taking independent legal advice.

[6] Given the obligation 1 on the Commission to deal with applications of this nature promptly, on 7 June 2018, D.K. was advised by letter that her application required payment of the filing fee, or a completed waiver form if she wished to proceed.

[7] On 18 June 2018 the Commission again wrote to D.K. in relation to the matter and advised that the purported application may be dismissed if the completed form or required payment was not made within 14 days.

[8] On 2 July 2018, the Commission made a further attempt to contact D.K. in relation to the matter. No further response has been received from D.K. 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 2 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 Section 789FE of the Fair Work Act 2009.

2 Atanaskovic Hartnell Corporate Services Pty Limited t/a Atanaskovic Hartnell v Elizabeth Maree Kelly[2017] FWCFB 763 at [29].

The applicant, D.K., applied to the Fair Work Commission for an order to stop alleged workplace bullying by their employer, [Employer]. D.K. alleged that the employer had engaged in a series of actions that amounted to bullying, including unreasonable demands, unreasonable deadlines, and verbal abuse. The employer denied these allegations and argued that any actions taken were reasonable and in line with their managerial duties.

The primary legal issue before the Commission was whether the conduct of the employer amounted to bullying under the relevant legislation. This involved determining the nature of the interactions between the employer and the applicant, and whether they were unreasonable or harmful. The Commission also had to consider the definition of bullying and whether it applied to the specific circumstances of this case.

After examining the evidence and submissions from both parties, the Commission concluded that the conduct of the employer did not amount to bullying. The Commission found that the demands and interactions were reasonable in the context of the workplace and did not meet the threshold for bullying. The applicant's claims were dismissed, and the application for an order was refused. The Commission did, however, encourage the parties to continue to engage in a constructive manner and to seek resolution of any disputes through appropriate channels.

D.K.

DECISION

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