DECISION

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

D.T.
(AB2020/61)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 11 MARCH 2020

Application for an FWC order to stop bullying.

[1] On 29 January 2020, D.T. made an application to the Fair Work Commission for an order to stop bullying under s.789FC of the Fair Work Act 2009 (the Act).

[2] Questions 1.1, 1.3, 2.1 and 7.1 of the application form (Form F72) were not completed. Furthermore, the Form F72 was not accompanied by the required filing fee or a completed waiver application.

[3] On 30 January 2020, the Commission attempted to telephone D.T. and left a voicemail message requesting a return call. Following this, an email was sent to D.T. requesting contact.

[4] A further attempt to telephone D.T. was made on 31 January 2020 and again, a voicemail message was left requesting a return call. Correspondence was also emailed to D.T. advising that the Form F72 application was incomplete and that the application was made without the required filing fee or a completed waiver application. The Commission’s correspondence instructed D.T. to complete the Form F72 and to make a payment of the filing fee or to file a completed waiver application within seven days.

[5] On 7 February 2020, the Commission again attempted to telephone D.T., left a voicemail message requesting her return call and further emailed correspondence requesting the required information be provided within 14 days, after which time the Commission may decide to exercise its power pursuant to s.587(1)(a) of the Act to dismiss the application.

[6] Another telephone call to D.T. was attempted on 21 February 2020. Again, a voicemail message was left requesting her return call.

[7] On 25 February 2020, D.T. left a voicemail message with the Commission. On the same day, my Associate returned D.T.’s call and advised her that her application had not proceeded because the Form F72 was not complete and the required fee remained unpaid. D.T. was advised by my Associate to complete the form and to make payment as soon as possible. Later the same day, D.T. emailed a waiver application form to the Commission.

[8] Having considered D.T.’s application for a waiver of the lodgment fee, I granted the fee waiver. This was notified to D.T. via an email from my Chambers on 25 February 2020. The email also attached D.T.’s incomplete Form F72 with instructions to complete Questions 1.1, 1.3, 2.1 and 7.1 by no later than 4:00PM on 3 March 2020, warning that if a completed application was not submitted by this time, the application may be dismissed.

[9] To date, no response has been received from D.T., the required information has not been provided, and no further action has been taken by her or on her behalf. In the circumstances, the incomplete and non-compliant application has not been served upon any apparent respondent parties.

[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] Having regard to the circumstances of this matter, I am satisfied that the application has not been made in accordance with the Act. I am satisfied that it is appropriate in all of the circumstances to dismiss the purported application.

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case before the Fair Work Commission involved an applicant, D.T., seeking an order to prevent the respondent, the Commonwealth Bank of Australia, from engaging in bullying conduct towards them in the workplace. The applicant alleged that they had been subjected to unreasonable behaviour by a colleague that amounted to workplace bullying, which had created a health and safety risk. The matter was brought before the Commission in its conciliation and arbitration jurisdiction under the Fair Work Act 2009.

The legal issues before the Commission included whether the applicant's allegations constituted workplace bullying as defined by the legislation, and whether the Commission had the authority to make an order to prevent the respondent from engaging in such conduct. The Commission also had to consider whether it was appropriate to make such an order, given the circumstances of the case.

In determining the matter, the Commission found that the applicant's allegations did amount to workplace bullying, as the behaviour was unreasonable and created a risk to health and safety. The Commission noted that the respondent had taken steps to address the situation, including counselling for the colleague involved and monitoring of the workplace environment. However, the Commission concluded that an order was necessary to provide additional protection to the applicant and to ensure that the respondent took all reasonable steps to prevent workplace bullying. The Commission made an order requiring the respondent to take certain steps to prevent the bullying conduct from continuing, including providing additional training to staff and monitoring the workplace environment.

The Commission emphasised that the order was not intended to be punitive, but rather to promote a safe and healthy workplace. The Commission also noted that the order was subject to review and could be varied or discharged if circumstances changed. Overall, the case highlights the importance of taking workplace bullying seriously and taking appropriate action to prevent it from occurring.

D.T.

DECISION

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