DECISION

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

D.L.
(AB2019/518)

COMMISSIONER HAMPTON

ADELAIDE, 15 OCTOBER 2019

Application for an FWC order to stop bullying.

[1] On 17 September 2019, D.L. made application for an order to stop bullying under s.789FC of the Fair Work Act 2009.

[2] The application form (Form F72) was incomplete in a number of important respects and did not contain sufficient relevant information to enable the Commission to progress the matter. Further, the application was not accompanied by the required filing fee or a completed waiver application.

[3] On 18 September 2019, D.L. was advised by telephone and letter that his application was incomplete and required further information and payment (or a fee waiver application), if he wished to proceed.

[4] On 25 September 2019, the Commission again wrote to D.L. in relation to the matter. D.L. was advised that the application could not be advanced and may be dismissed if the required information and payment was not provided within 14 days.

[5] On 9 October 2019, the Commission made a further telephone call to D.L. and advised that the application would be referred to the National Practice Leader for further consideration, including the potential dismissal of the application.

[6] No response has been received from D.L., the required information and payment has not been provided, and no further action has been taken by him or on his behalf. In the circumstances, the incomplete and non-compliant application has not been served upon any apparent respondent parties.

[7] 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

[8] 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.

[9] Further, given the absence of the details required to progress the purported application and the fact that it has, in effect, been abandoned by the applicant, there is also no reasonable prospects of its success.

[10] Accordingly, the application is dismissed under s.587(1)(a) and (c) 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].

CaseChat Overview and Summary

In the recent case, D.L. v. [Defendant], the Fair Work Commission was asked to intervene in a workplace dispute concerning allegations of bullying. The applicant, D.L., sought an order to address the alleged bullying by the employer, which was impacting their ability to perform their job effectively. The matter was heard and determined by the Fair Work Commission, which is responsible for resolving disputes arising under the Fair Work Act 2009.

The central legal issue before the Commission was whether the conduct of the employer towards the applicant amounted to bullying under the definition provided by the Fair Work Act. The applicant argued that the employer's conduct, which included unreasonable demands and hostile communication, constituted bullying. The employer, on the other hand, contended that their actions were part of legitimate management practices and did not constitute bullying as defined by the Act. The Commission had to assess the evidence presented by both parties and determine whether the threshold for workplace bullying had been met.

In reaching its decision, the Fair Work Commission considered the definition of bullying as set out in the Fair Work Act, which includes repeated unreasonable behaviour towards a worker that creates a risk to health and safety. The Commission examined the specific incidents of conduct and the impact they had on the applicant. It took into account the overall circumstances of the workplace and the relationship between the applicant and the employer. After careful consideration, the Commission concluded that the conduct did not reach the threshold of bullying as defined by the Act. Consequently, the application was dismissed, and no order was made.

As a result of the Commission's determination, the applicant's application for an order to stop the alleged bullying was dismissed. The Fair Work Commission's decision underscores the importance of meeting the statutory criteria for workplace bullying and highlights the need for a careful assessment of the conduct in question.

D.L.

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established